The founders of a limited liability company are responsible. We dispel myths that founders do not answer with their property for debts

Responsibility of the founder for the activities of the LLC- one of the aspects that is often cited among the advantages of choosing this organizational and legal form in comparison with individual entrepreneurship. 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, it would seem, is obvious. Nevertheless, in recent years, the founders (participants) of the LLC are increasingly receiving debts that were formed during the period of the company's activity and which cannot be repaid at the expense of its property and monetary funds.

The LLC cannot pay - the owners of the enterprise are brought to justice in the first place. Such a right is directly given to creditors by legislative provisions that fall under the exceptions to the general provision on the absence of liability of founders (participants) for the obligations of a legal entity.

Bringing to responsibility the founders (participants) of legal entities as a modern trend

The issue of the need to toughen the requirements and responsibility of the founders (participants) of commercial legal entities became especially relevant in the late 2000s. The massive emergence of fly-by-night companies, the registration of companies as dummies, the active use of various alternative liquidation schemes, falsification of reporting and information in the Unified State Register of Legal Entities - all this entailed serious losses for creditors. At the same time, bankruptcy of enterprises became a very good option for the owners, which led to the liquidation of the company with debts, and to the cancellation of any outstanding debts. Despite the existence of provisions in the Civil Code of the Russian Federation and other laws that allow the attraction of founders (participants) of legal entities to subsidiary liability, these norms were rarely applied in judicial practice.

In 2010, the criminal legislation was tightened. The bankruptcy legislation has also undergone changes. Subsequently, some changes in terms of the responsibility of the founders were made to special laws concerning the activities of certain forms of legal entities.

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

1. To subsidiary liability for the company's debts arising from the actions (inaction) of the persons controlling the debtor and leading to its bankruptcy, in the event that the LLC property is insufficient to cover all debts.
2. Criminal liability - if there is corpus delicti in the actions (inaction) of the founder (participant) (we are talking, first of all, about crimes in the sphere of economic activity).
3. To administrative responsibility, including tax liability, which is relevant mainly for cases of combining the statuses of a participant and a head of an LLC.

Features of responsibility

The liability of the founders (participants) of an LLC differs by type and basis of 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 responsibility of the founder is that it is possible only in the presence of certain actions (inaction) that directly led to negative consequences (bankruptcy), or contain the composition of an administrative or criminal offense. Responsibility does not follow from the status of the founder. And in this case, the provision that the LLC is independently responsible for all its obligations is directly valid.

The responsibility of the founder and the participant of the LLC should be distinguished... 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 in the course of the LLC's activities. Participants - former or current owners (owners) of shares, who did not always stand at the origins of the creation 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 responsibility of the founder of the LLC: within the authorized capital

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

• founders are obliged to pay their share within a specified period in accordance with the agreement on foundation;
• the participants who paid the share in full shall be liable for the losses of the company only within the limits of their share;
• the participants who paid for 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 the LLC or a unanimous decision of all participants may provide for additional obligations;
• additional responsibilities can be imposed only on a certain company participant, about which a decision is made by 2/3 votes, subject to voting for such a decision by the participant himself or giving them a written consent.

Subsidiary liability of the founder (participant)

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

The bankruptcy law does not consider subsidiary liability only in relation to the participants of the LLC - we are talking about all persons controlling the debtor. These include any persons who, for the last 3 years before the bankruptcy petition was accepted by the arbitration tribunal, could give instructions binding on the LLC or otherwise determine the actions of the company. The law directly recognizes the persons controlling the debtor, the participant of the LLC, which owns more than 50% of the shares in the capital of the company, and the head of the company.

For the onset of subsidiary liability, 4 conditions are necessary:

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

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 the absence of his 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 subsidiary liability- all claims of creditors included in the register, declared after its closure and arising from current payments in the course of bankruptcy proceedings, which cannot be repaid at the expense of the property of the LLC, including as a result of a sale within the framework 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 is able to prove that the harm (damage) caused by his actions (inaction) is less than the amount that the plaintiff requires to recover.

Bringing to subsidiary liability can 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 claim, accordingly, is due to a specific plaintiff. In fact, the general procedure for collection, including compulsory collection, will be applied here.

Recovery under 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 that can also be a member of an LLC.

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

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

Administrative and criminal liability

The founders (participants) of an LLC are rarely brought to administrative and criminal liability, in isolated cases. A clear composition of the offense is required here:

• specific illegal actions (inaction), entailing criminal (administrative, tax) punishment;
• the attribution by law of the founder (participant) to the subject of a specific corpus delicti;
• the 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 brought to justice.

In most cases, the administrative or criminal liability of an LLC participant is associated with his managerial status in society. 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 mandatory payments, financial violations, etc.

Bringing to administrative or criminal liability can occur on the initiative (statement) of any interested person. Often, such offenses are detected by law enforcement agencies on their own as part of operational-search activities. Sometimes the tax and other regulatory authorities file an application.

Other types of liability of the founder of the LLC

The founders (participants) of an LLC have rights and obligations established by law and statutory documents. 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, financial liability is also possible. Any person has the right to file a claim against the founder, even the company itself, as an independent legal entity. As a rule, such issues are initially referred to the category of corporate disputes, and the damage is recovered in the usual manner - within the framework of a claim in an arbitration court.

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

Subsidiary liability became the norm in bankruptcy

Federal Law No. 488 of 28.12.16, which amended the law on LLC and the law on bankruptcy, significantly complicated the life of those business owners who, in recent years, intentionally or involuntarily bankrupt their companies. 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 firm.

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

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

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

When the subsidiary liability is imposed on the founders of the LLC for the debts of the company in 2018

If the assets of the firm are sufficient to meet 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 consequence, 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 in full falls on the shoulders of CO subjects.

To bring the perpetrators to liability for the LLC's debts, certain conditions must be met:

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

Important! If the management or persons controlling the debtor company are brought to subsidiary liability, they are not subject to the presumption of innocence.

Subjects of subsidiary liability

Likely candidates for the subsidiary:

• founders;
• director;
• any de facto managers or controllers.

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.

Responsibility is proportional to the organization's actual debt to creditors. If a bankrupt company has a debt of, for example, three million, the same will be charged from the founder.

What can lead to liability of an LLC for debts:

• frivolous transactions with "fly-by-night";
• 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 obliged to notify the court about 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 on an equal basis with the remaining debts for two years (Article 95 of the Civil Code of the Russian Federation).

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

1. The circle of subjects of subsidiary liability has expanded. In addition to members and directors, the concept of “person controlling the debtor” has been introduced. These are business owners, large shareholders, financial and technical directors, former key employees to relatives. The only condition for their participation in JI is the fact of significant influence on the activities of the organization and a time limit - no more than three years of their activity, preceding the occurrence of a situation for bankruptcy.
2. Art. 3 of the Federal Law No. 14 "On LLC" was supplemented with an interesting provision, according to which in the event of unfair or unreasonable actions of the founders and directors, the creditor can collect the debt from them through the courts. Previously, such an opportunity was provided only during the bankruptcy process.
3. Federal Law No. 488 supplemented Article 10 of the Federal Law "On Bankruptcy". Creditors can bring debtor firms to justice after bankruptcy proceedings or outside of it, if they have not received satisfaction of the declared claims. Previously, in the absence of funding, it was impossible to initiate a bankruptcy case.
4. Even if a legal entity is excluded from the register of the Unified State Register of Legal Entities, you can safely make a direct claim to satisfy debt obligations to controlling persons (subparagraph 3.1 of article 3 of the Law on LLC).

Is the director of the LLC responsible for the debts of the company with his property?

Is the director of the LLC responsible for the debts of the company with his property in 2018? The law clearly defines how losses are recovered from a director if he has caused damage to the company, namely:

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

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

If the founder and director of the LLC are one person

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

• led an illiterate economic management;
• allowed an increase in debt in all areas of accounting;
• used loans irrationally;
• selected unverified counterparties.

If the company goes bankrupt due to the fault of the founder, as well as the persons who are responsible for the work of the company, they are assigned subsidiary responsibility, including the head and founder in one person (Federal Law 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 RF Armed Forces dated 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 collection from the physical. persons of damage to the state in the amount of the unpaid amount.

In addition to material 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 the liability of an LLC for debts?

Subsidiary 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", can legally block the claims of creditors. However, independent entry into the bankruptcy process does not guarantee the subjects of the protection of personal property from the claims of creditors. If the assets of the debtor company are not enough to pay off the 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. Tax authorities will make every effort to find funds to pay off debts: from inquiries to government agencies, the bailiff service to the registry office and banks where personal accounts are opened.

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

Procedure for prosecution

First of all, the court's target is the executive person - the director, the executive director. The persons who control the organization are involved only after the sale of the property of the debtor company and settlements from the proceeds with the creditors. If the court finds a relationship in their actions and the company's economic catastrophe, then the penalty will be imposed on their personal property.

The role of the insolvency practitioner in the process

The bankruptcy administrator is appointed by the court to conduct the bankruptcy of the organization. It depends on the bankruptcy administrator how much complete information he collects about the debtor company, establishes the guilt or innocence of the responsible persons, whether or not he doubts the veracity of the bankruptcy.

If the evidence speaks of fictitious or intentional bankruptcy, he has the right to bring the guilty subjects to subsidiary liability by filing a claim in court.

Full property liability without bankruptcy

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

Nuances of recent judicial practice

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

• the obligation to prove their innocence rests with the owners and persons controlling the business;
• The Supreme Court, in a ruling of March 9, 2016, upheld the presumption of guilt of these persons;
• a causal relationship is established in court between not filing a bankruptcy petition and the damage caused to the creditor and the state;
• managers who evaded bankruptcy proceedings are subject to disqualification for a period of six months to three years;

Since June 28, 2017, directors and founders are liable for the debts of companies 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 are more than 700 thousand of such companies) ... Tax debts companies are considered the 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 paid off ... A full 13-page guide on all types of liability of managers and business owners for the company's activities (a legal entity) We decided not to limit ourselves to subsidies only. As a result of disputes and repeated clarifications in front of you - a unique guide for managers and owners with a systematic analysis of all types of liability for the company's activities: from criminal to personal bankruptcy, from collecting tax arrears from controlling physicists (from November 2016) to recovering losses in criminal cases ...

For what and what are the managers and owners of the business responsible for the debts and tax liabilities 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.

To be honest, while we were preparing this material we almost fought ourselves. As a result, you have a complete reference. Capacious and solid. Understand.

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Instead of a preface

As I have already written many times, industrial capitalism owes its heyday to the emergence of LLCs and joint-stock companies ... 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, went to a debt prison. Therefore factories with a staff of 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 demanded legal tools in the form of limited risks for an entrepreneur.

Following the LLC and the joint-stock company, the legislation on bankruptcy also came up. By the beginning of the 20th century, rules were widely introduced to write off most of the debts by creditors in the framework of bankruptcy.

In Russia, the path is, as always, special. Over the past several years, the legislator has stubbornly followed the path of toughening the responsibility of the leaders and founders of the company. Including bankruptcy.

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

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

I agree that an entrepreneur must behave wisely. Yes, this activity is at his risk. But, you must agree, an entrepreneur cannot and should not be held responsible for the two-fold deliberate devaluation of the ruble, for example ... and even more so for the massive withdrawals of loans by banks that followed. He cannot be held responsible for the end-to-end kickback system of big business. For twenty years of connivance at the almost universal use of "one-day" (including as a consequence of the end-to-end system of kickbacks), and then for a sharp change in the rules of the game - from tax rules to credit conditions. An entrepreneur, let me say, bears risks at least by spending part of his life, health, family well-being in all senses ... and risks not earning anything at the same time, unlike his hired employees (for delayed salary payments he also bears criminal liability, and for an attempt to pay salary in a difficult situation, even out of good intentions to the detriment of tax obligations and creditors - will be held liable twice, or even three times ... the circle is closed).

However, there is what is. You are already in trouble running and / or owning a business. Let's put everything on the shelves. So, at least, you can 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 business ownership" or "why a business must necessarily be a group of companies."

1. Responsibility for violation of current legislation

Subject: Head of the organization.

A responsibility: administrative, criminal.

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

Boundless as an ocean, Russian legislation contains a huge number of standards, rules, orders and procedures, for violation of which not only legal entities themselves, but also their leaders are brought to administrative and, if the result of the act is more deplorable, to criminal liability. They did not repulse and did not issue a cashier's receipt to the buyer, did not notify the relevant authority about the conclusion of an employment contract with the migrant, violated the deadline for notifying the company's founder about the extraordinary meeting of the company's participants - get a fine both for this 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. The size of the fines can be substantial. From the saddest: the 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.

Since 2016, the threshold for criminal prosecution for tax evasion has been significantly increased. Up to 900 thousand rubles for individuals. And up to 5 million rubles for legal. In the media, this is called the buzzword of the decriminalization of the act. However, if you manage 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 provides grounds for initiating a criminal case (of course, if you did not immediately rush to pay for the inspection request).

Separate emphasis on Art. 199.2 of the Criminal Code - concealment of property from tax collection. Dashing owners or business leaders, sensing something amiss and holding in their hands the decision of the tax authority just handed on the appointment of an on-site audit, are frantically looking for a way to get money or property out of potential foreclosure. But in vain. This crime is very formal. The proof is relatively easy. The fact of transferring money, alienating property and even directing the proceeds bypassing the potential defaulter directly to suppliers and contractors is a crime. Of course, if its cost starts at 2.25 million rubles.

For non-payment of social contributions, despite the fact that they have become Chapter 34 of the Tax Code, there is no criminal liability so far. The corresponding bill lay in the Duma and turned sour. Apparently there will be a new one. Because it will definitely become a crime.

2. Liability for culpable damage to the company

Subject: leaders of the organization (individual and members of the collegial body).

A responsibility: compensation for damage.

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

It is quite logical that the executive body of the Company, be it a director, president, manager or a member of the board, is obliged to act in good faith and reasonably in the interests of the company he heads (this is what the corresponding laws - “On LLC” and “On JSC” dictate). In the event that he, violating these principles and using his position, causes damage to the company: for example, he concludes a transaction in violation of the interests of the owners and / or bypassing the mandatory procedure for its approval 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 management bodies of the company was a fantasy: the courts demanded to determine the exact amount of damages and referred to the probabilistic nature of the assumptions about their causation.

The Supreme Arbitration Court of the Russian Federation corrected this situation in its Resolution 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 knowingly incapable of fulfilling the obligation ("one-day firm"). If as a result of such actions the company is brought to tax or administrative responsibility, the incurred losses in the amount of additional taxes, penalties and fines (if we are talking about a one-day deal) may be recovered from the director.

This ruling has expanded the few court practice in cases of recovering losses from company directors by 180 degrees. Now the courts have practically no problems with determining the amount of damage. And the amount, the amount then what!

• in case No. А41-2271 / 13, about 223.5 million rubles were collected 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 the appropriate amendments to the Civil Code of the Russian Federation (mentioned above, Article 53.1 of the Civil Code).

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

from the said Resolution ...

p. 2 The unfairness 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 the director's affiliates) and the interests of a legal entity, including if there is an actual interest of the director in the legal entity's transaction, except for cases when information about the conflict of interest was disclosed in advance and the director's actions were approved in accordance with the procedure established by law;

2) concealed 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, 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 the transfer to the legal entity of documents concerning the circumstances that entailed adverse consequences for the legal entity;

5) knew or should have known that his actions (inaction) at the time of their commission did not meet the interests of the legal entity, for example, he made a transaction (voted for its approval) on conditions that are obviously unfavorable for the legal entity or with a person who is deliberately incapable of fulfilling the obligation ("One-day firm", etc.) ....

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

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

2) before making a decision, did not take actions aimed at obtaining the information necessary and sufficient for its adoption, which are usual for business practice in similar circumstances, in particular, if it is proved that under the existing circumstances a reasonable director would postpone 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 performing similar transactions (for example, coordination with the legal department, accounting department, etc.).

The very fact of unprofitable activities or other negative consequences, of course, is not evidence of the unreasonableness and / or bad faith of the director's actions, since they may be the result of an unfavorable economic situation and other external factors. The risky nature of entrepreneurial activity has not been canceled, and therefore, of course, it will not be possible to assign the founders' entrepreneurial risks to the director. However, it can be considered that the practice has taken shape in three years.

3. Liability in bankruptcy

Subject: controlling person (it does not matter, founder, director or cleaner). Someone who actually runs the organization.

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

What is provided for: Art. 10 Federal Law "On Insolvency (Bankruptcy)".

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

The circle of potentially responsible persons:

• founders (participants);
• leaders of the organization;
• trustees of the company's shares;
• any other individuals who are not formally and legally not associated with the company, but in fact manage or managed 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 instructions binding on the debtor society;
• the ability to determine the actions of the company, including by coercing its governing bodies;
• decisive 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 date when the creditor learned or should have learned about the existence of grounds for this, but not later than three years from the date the debtor was declared bankrupt.

There is a widespread belief among business owners that subsidiary liability is something distant and incredible. Indeed, earlier it was practically impossible to prove to creditors 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 the controlling debtor until they prove otherwise.

What does this mean for you? The guilt is assumed if one of the following is proven:

1. The inability to pay off the debt to the creditor in full. What is the probability? Exactly 100%, otherwise why did it go to bankruptcy?
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 a subjective assessment of "materiality" remains an indulgence for a leader. I understand that in the circumstances prevailing at this moment, you are in a state of time trouble, seasoned with depression or fear. But nevertheless, when transferring cases to the arbitration manager, make sure that the primary accounting documents are filed in thematic folders, that an inventory of each (!) Document is compiled. It will not be superfluous to photograph each (!) Document. Do a documentary audit before transferring cases. And not for 50 thousand rubles, when the auditor draws up a conclusion according to a pre-written template, namely a documentary one. Claim what is missing from your counterparties, whatever the cost.
3. More than half of the claims of third-priority creditors are due to the bringing of the debtor or his officials to criminal, administrative or tax liability.

The most common case of the above, of course, is tax arrears. Statistically, the Federal Tax Service is the initiator of bankruptcy proceedings in every tenth case. The main difference between such procedures is that the FTS is not a commercial company dominated by economic expediency. After all, any creditor, before filing a bankruptcy petition in 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 comprehension. 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 is often more harsh. In addition, there are situations when even the most stubborn creditors, but not the Federal Tax Service, retreat before the obvious impossibility of collection. After all, there is no one to slow down under their own responsibility either. It resembles a skating rink that was derailed in the cartoon "Wait a minute!" ... it rolls and rolls.

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

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

• the creditor (authorized body) learned or should have learned about the existence of grounds for bringing the controlling person to subsidiary liability only after the completion of the bankruptcy proceedings;
• a similar claim on the same grounds and against the same persons was not presented and was not considered within 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 heads, if the signs of insolvency were known to him (or should be known).

On this basis, only a manager 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, from the summer of 2017, the director can be held liable for subsidiary liability even if the procedure was terminated after the filing of the application due to the lack of funds to reimburse legal costs for the bankruptcy. But we will talk about this in detail later.

Another interesting aspect is the use of denominations as a cover for liability. Judicial practice demonstrates that the decision to change the actual managers and founders of the company to nominees from among friends, employees and relatives not only does not prevent the prosecution of business owners and current managers with subsidiary liability, but is also an indirect proof of guilt.

The decision of the owners to "abandon" the debtor company by sending it to join a nominee structure in a remote region of the Russian Federation also does not help to evade responsibility, since in this case a simplified procedure for declaring the 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

Individual bankruptcy has been launched since October 2015. Due to this, if it is impossible (or insufficient) to collect something from the managers and founders in the framework of bringing them to subsidiary liability, there is every chance of getting something through their personal bankruptcy.

The wording of the courts in this case is as follows: the debt of an individual arising 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 within 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 nuisance 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 contracts.

But this is not the worst thing ...

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

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

In other words, the claims of creditors after the citizen is declared bankrupt remain valid regardless of whether they were declared within the framework of the bankruptcy procedure 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 managers of the company declared bankrupt, brought to subsidiary liability, will not be able to get rid of the debt hanging over them. The initiation of the bankruptcy procedure either by the person himself or by any creditor will not help in this. Unfortunately, such a debt cannot be written off.

As a result, as sad as it may sound, the debt incurred as part of bringing to subsidiary liability is listed by the controlling persons of the bankrupt company indefinitely until it is repaid.

Himself bankrupt. No, he himself is bankrupt.

According to the law, the head, having come to the conclusion that the company is insolvent, must, within a month, apply to the arbitration court with an application for declaring it bankrupt. The obligation was introduced in order to prevent wider negative consequences for creditors, so that the company could not assume further unfulfillable monetary obligations.

It is with the primary reason for the inclusion of this basis of liability in the legislation that its key feature is connected - to bring the manager (and only the manager) to subsidiary liability for the untimely filing of the debtor's application is possible by far not for all the obligations for the satisfaction of which there is not enough property of the Company. He is responsible only for those of them that arose after the expiration of the period allotted for the submission of such an application.

Therefore, in practice, all legal disputes involving the debtor's manager (liquidator) to subsidiary liability are associated with the establishment of the date of occurrence of the obligation to independently file a bankruptcy petition.

For the manager, 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 economic activity of the debtor;
• there is an outstanding debt to employees within 3 months;
• the debtor has signs of insolvency and (or) insufficient property.

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

Insolvency - the termination of the performance by the debtor of part of the monetary obligations or obligations to pay mandatory payments, caused by insufficient funds. In this case, the presumption of insufficient funds is valid until proven otherwise.

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

In fact, all the above circumstances intersect with each other and in practice are reduced 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 systemic interpretation of the rules on bankruptcy, to the determination of the financial insolvency of the debtor and the insufficiency of property:

Financial insolvency must be understood as a condition that does not allow him to satisfy the claims 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 should be performed.

Simply sending a claim to the debtor by the creditor for 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 lack of any assets of the Company.

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

Actually, for violation of these terms, the "subsidiary" will fly to the head. Own, personal, personal. Even if he was innocent of the very 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 signs of bankruptcy appeared. For failure to file an application for self-bankruptcy, the debtor's manager can only be held liable for the latter. For the first group of obligations, the head is held liable on general grounds - if he has brought the company to bankruptcy by his actions. At the same time, it does not matter which obligation the debtor could not pay off: did not pay taxes, did not return the loan, did not pay for goods (work, services) within the time period established by the contract.

But the creditor, the obligations to which arose after a month from the moment the company had 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 uncontested / court-confirmed debt for more than three months, but also lacks 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 for: clauses 5, 5.7, 5.8 of Art. 10 of the Federal Law "On Insolvency (Bankruptcy)" as amended by Law No. 448-ФЗ dated December 28, 2016.

Now, developing the topic, let's imagine that the head of the debtor company has not filed a bankruptcy petition for the company he heads and should be held liable. But 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 legal costs for the bankruptcy proceedings. The court has such a basis. Or, say, the bankruptcy proceedings were terminated on the same grounds and they did not have time to bring the director to justice.

What should the creditors do in this case? Will the director leave unscathed? Until the end of June 2017, it will be so. However, in the summer of this year, creditors and authorized bodies have the opportunity to bring the persons controlling the debtor to subsidiary liability outside the framework of the bankruptcy procedure. Representatives of the Federal Tax Service, “rubbing their hands,” have already stated that this approach would “two to three times reduce the number of ineffective bankruptcy procedures”.

Statement on bringing the director to subsidiary liability in this case:

• is filed with the arbitration court that terminated the proceedings in this case (returned the application for declaring the debtor bankrupt);
• is considered in a claim procedure;
• can be filed within three years from the date when the creditor learned or should have learned about the existence of grounds for filing such an application.

However, this is not all. The director may not be at all to blame for the failure to file a bankruptcy petition. For example, the manager has written evidence that the owner, despite the manager's repeated appeals, and even being a creditor to the company himself, simply “stumbled”. Didn't say yes or no. In fact, the owner, as a controlling person, must bear full responsibility. But creditors cannot yet bring him to justice, if, again, the court returned the bankruptcy petition or the proceedings were terminated due to the lack of funds to pay for the procedure.

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

In this case, the amount of losses should not exceed the size of the 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 that have been forcibly excluded from the register.

From June 28, 2017, the persons controlling such a company over the past three years may be brought to subsidiary liability if a 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. Today, after the exclusion of the company from the Unified State Register of Legal Entities, creditors cannot present any claims to the founders or the director of this company. That allows entrepreneurs to "abandon" 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 obtain the same effect, it will be necessary not only to wait for the company's exclusion from the Unified State Register of Legal Entities, but also to maintain the three-year period of recognition of the former real owners and managers as controlling persons.

5. FULL property responsibility WITHOUT bankruptcy

Subject: guilty person in control

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

What is provided for: general rules on liability, taking into account the position of the courts (Definitions of the Constitutional Court No. 1470-o of 17.07.2012, No. 786-o of 28.05.2013, Determination of the Armed Forces of the Russian Federation of 27.01.2015 No. 81-KG14-19)

After the adoption of the RF Armed Forces Decision No. 81-KG14-19 dated January 27, 2015, the tax authority now has another serious instrument for collecting arrears, namely: recovery of damage from individuals controlling the organization within the framework of a criminal case.

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

The Supreme Court decisively changed this practice with its Determination, stating in it that an individual who was brought to criminal responsibility for this offense can be recognized as responsible for compensation for damage to the Russian Federation in the form of taxes unpaid by the organization, including unlawful reimbursement from the VAT budget.

Previous references of the lower courts to the provisions of Art. 45 and art. 143 of the Tax Code of the Russian Federation, strictly establishing 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 insolvent, since in this case it is not about collecting taxes, but about compensation for damage caused by a crime.

So, taking into account the position taken by the RF Armed Forces 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 the event of non-payment of additional charges by the taxpayer, resort to bankruptcy proceedings and declare that the persons controlling the debtor are subject to subsidiary liability.

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 obliged to compensate the damage caused to the budget by their actions. 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 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 act of amnesty.

Example: The case of Energotekhnologii LLC. As a result of the decision of the tax authority based on the results of an on-site tax audit and non-compliance with the requirement to pay taxes, the materials concerning the director were transferred to the Investigative Committee. A 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 in additional taxes as damage to the budget caused by his actions.

6. Liability FOR the very fact of bankruptcy

Subject: managers and members of the company

A responsibility: administrative or criminal

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

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

Example: the case of Uralskiy Les LLC

Due to financial difficulties in business, the director, who is also the founder of the company, accrued and paid salaries to employees, but there was no longer enough money to withhold personal income tax from the wage fund. From the court's point of view, there is a selfish motive in the director's actions: 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 salaries, he could also be subject to criminal liability, but this is not the point). Thus, on the basis of 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 damage to the budget (although legally, of course, personal income tax is a tax of 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 for: Art. 45 of the Tax Code of the Russian Federation

Today, a simple transfer of financial and economic activities to another formally independent operating company, while hiding the actual owners of the companies behind nominal persons, does not give anything if you intended to “cut the tails” in the form of accumulated tax risks. In the event that tax arrears are revealed as part of a tax audit, the tax authorities can bring a claim to the court to declare the new operating company dependent and recover from it the entire amount of tax debts owed by the “abandoned” company.

This requires two conditions:

1) Dependence of companies established in court.

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

• registration of a newly created operating company during the on-site tax audit of an existing operating company;
• the presence of a common founder and head of companies or mutual participation of companies in each other's authorized capital (by the way, this is not a mandatory criterion at all);
• companies have the same actual addresses, contact numbers, email addresses, Internet sites, activities, trademarks;
• accounts were opened with the same banks;
• the newly created company starts working with the counterparties of the first operating company on the same contractual terms;
• the original company assigns its rights under the concluded agreements to a newly created operating company or terminates previously concluded agreements with all or most of its counterparties, and the newly created company enters into similar agreements with them in a short period of time;
• transfer of all employees from an existing company to a newly created company;
• the 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 of the debtor's proceeds or property on the accounts of the dependent company.

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

Under these circumstances, parent and subsidiary companies, as well as formally independent, but showing signs of a “duplicate” company, are fully liable for the tax evader. That's what we call it: responsibility for that guy.

You may not have had time to taste such opportunities for collecting tax arrears yet. And since November 30, 2016, Article 45 of the Tax Code of the Russian Federation has already been rewritten, replacing the word “organizations” with “persons”. As a result, the legislator has already put 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. No, though. After all, we mainly talked only about property liability ...

Our other materials to help you:

One of the most interesting types of legal entities is considered. With this organizational and legal form, the founders of the company bear material responsibility exclusively within the framework of the authorized capital.

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

Each participant must be registered, otherwise he cannot be a part.

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

• determine the activities of society
• approve the charter of an LLC, change it, as well as the size, name, and location of the company
• approve draft annual reports
• schedule an audit
• make decisions regarding 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, approve large contracts, and hold a general meeting.

Sole or collegial executive body, which is elected by the general meeting of participants. Only an individual can be appointed who does not need a power of attorney to act on behalf of the company, he can issue powers of attorney for other persons, issue orders for employment, 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.

Liability of the founders of the company

LLC is responsible with its property for its debts and obligations. This means that if the society is not able to independently cover all the debts on its obligations, they will not be obliged to cover the unpaid part of the debt at the expense of its own funds.

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

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

Founders can 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
• unlawfully disposed of public property
• unlawfully extinguished 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 enter into transactions, 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 avoided paying customs duties

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

Within the framework of criminal liability, the court can recover from the founder a sum of money for, sentence him to imprisonment, or deprive him of the right to hold leading positions.

Material liability is borne in the form of fines or salary collection.

Responsibility of the founder for the debts of the company

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

Thus, everyone is responsible for their actions, therefore, for example, they will not be punished for the actions of a lawyer.

Liability can be collected in the form of a reprimand, dismissal, compensation for harm with a deduction from wages or a one-time penalty.

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

It should be mentioned that the law provides for the case when the founder will be responsible 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 when an organization bears additional obligations for the debts of an LLC. Within the framework of subsidiary liability, the founder of the LLC, its senior officials, such as the chief accountant, manager, manager, may be held liable to creditors.

In the event of bankruptcy, in the presence of circumstances, creditors may demand the payment of the LLC's debts with the personal funds of the founder.

This situation can 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 provided
• no decision was made to file a lawsuit declaring the company bankrupt if all the necessary circumstances were present

Liability in bankruptcy

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

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

Types of LLC liability

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 illegal actions committed, three types of liability can be imposed on the perpetrators:

• Material.
• Administrative.
• Criminal.

Responsibility of the director of LLC

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

The director of an LLC can be assigned all kinds of responsibility for the collapse of the enterprise.

Responsibility of founders (participants) of LLC

We can immediately say that in terms of responsibility, the founders of the LLC are protected by law. If a 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, by paying off debts to creditors, the founder does not risk his property. Moreover, even if all the property and assets of the LLC were auctioned off, and the creditors still do not have enough money. Only if the owner at one time does 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 the LLC are protected by law.

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

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

The responsibility of the former

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

The incumbent officials are administratively responsible. That is, if violations are identified in the organization, the current director will answer for them, even if the former committed them.

But criminal and subsidiary liability (we will talk about them further) by "quitting the game" cannot be avoided. 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 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 there are buts everywhere. If you prove that the company has failed due to the fault of a specific founder, you can recover or punish him for damages.

If the founder illiterately intervened in the work of the company and led it to bankruptcy, he can be brought to subsidiary liability. In Art. 399 of the Civil Code of the Russian Federation prescribes specific actions of the shareholder, 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.

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

However, lawyers point out that it is very difficult to prove such guilt. Although, according to statistics, by 2017, in comparison with the previous decade, there were more cases when financial responsibility fell on equity holders and the company's debts were collected from them.

Criminal liability

The culprit also bears criminal responsibility for improper conduct of economic activity. Moreover, if the losses amounted to more than 250,000 rubles, you can get a real term of imprisonment.

If the losses amounted to more than 250,000 rubles, you can get a real term of imprisonment.

Misconduct includes:

• Concealment of LLC property and falsification of information about its value.
• Illegal disposal of company property.
• Wrongful repayment of creditors' financial claims.
• Failure to satisfy (or not fully satisfy) the property claims of debtors.

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

By definition, the director bears criminal responsibility for illegal actions, but it can also be imposed on the founders. Art. 179 of the Criminal Code provides for the criminal punishment of the founder if, in the course of his activities, he forced to enter into a transaction or to refuse it, which led the organization to financial collapse.

It is interesting that not only creditors and counterparties, but also the participants of the LLC, 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 quite a few articles on which you can "get". For example, bringing an LLC to administrative responsibility threatens for violation of the law on advertising, laws in the field of ecology and, violation of consumer rights, fire safety. Activities without a license are also a reason to take them to court.

So, we found out that the liability of the 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, he always remains "extreme". But this formula is valid only with a conscientious business conduct. If the owner of the organization violated the laws, did not pay taxes, accumulated debts, then he will answer for it 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, therefore the founders quite often choose this particular form.