The bankruptcy procedure for a legal entity, step-by-step instructions for liquidating an enterprise.

Procedure for liquidation of a legal entity in case of bankruptcy

Bankruptcy aims to resolve debt obligations and renew the business. As the founder of a legal entity, you get the opportunity to get rid of the “unbearable burden” in the form of a debtor enterprise and transfer your assets to the authorized capital of the new company. As an individual entrepreneur, after being declared bankrupt, you do not lose the right to engage in commercial activities and be registered as an entrepreneur, while writing off unsustainable debts.

1. Filing an application for bankruptcy of an organization . The first stage of liquidation of a legal entity during bankruptcy is filing an application with all the necessary documents to the Arbitration Court. You have the right to submit such an application when you have circumstances that clearly indicate that your organization will not be able to fulfill its financial obligations to creditors in due time.
2. Consideration of the application by the court . The second stage involves checking the validity of your application by the arbitration court and making a decision to declare the legal entity insolvent and to open bankruptcy proceedings (approval of the bankruptcy trustee).
3. Determination of the circle of interested parties . The third stage is the presentation of their claims by creditors.
4. Payments under bankruptcy proceedings . The fourth stage is settlement with creditors. Creditors' claims are repaid from the formed bankruptcy estate. The law establishes the order of repayment of claims.
5. Making a decision in a bankruptcy case . The fifth stage is the completion of bankruptcy proceedings against your organization, which ends after the judicial authority has reviewed the bankruptcy trustee’s report on the results of the bankruptcy proceedings.
6. Exclusion of a company from the Unified State Register of Legal Entities . Then a determination is made on the completion of bankruptcy proceedings, which is subject to immediate execution and is the basis for making an entry in the Unified State Register of Legal Entities about the liquidation of the legal entity.

Note : Read when you must file for bankruptcy

Your obligation to submit such an application arises in the presence of specific situations that are clearly established by law:

• Having repaid the debt to one or more creditors, you are unable to fulfill your obligations to other counterparties;
• a body of a legal entity or the owner of a unitary enterprise has made a decision on the need to apply to the court for bankruptcy;
• foreclosure on the property of your legal entity will lead to serious problems and difficulties in its future activities;
• your organization meets all the signs of unprofitability and (or) lack of property;
• there is a three-month arrears of wages, benefits and other payments to your employees.

If the above grounds exist, you should contact the court as quickly as possible, but no later than one month from the moment the relevant circumstances arise.

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Bankruptcy procedure and debts

The concept of financial insolvency is inseparable from the lending system. Today, even large and wealthy companies regularly resort to the mechanism of financial borrowing. The volume of loan obligations determines how successfully a business is run. Moreover, the absence of raised funds in the company’s budget may indirectly indicate that the development potential of the enterprise is very limited or that it does not inspire confidence among credit institutions. Meanwhile, the company’s debts, or rather the impossibility of repaying them on time, is the main reason for bankruptcy.

Even if we imagine a company that does not attract credit funds at all, this does not guarantee its absolute resistance to bankruptcy. Such an organization has obligations to pay wages, transfer taxes, other budget fees, as well as monetary obligations to counterparties. A decrease in the profitability of an enterprise over time inevitably leads to delays in making mandatory payments, which may result in bankruptcy proceedings.

What documents are needed for bankruptcy of a legal entity?

In addition to the documents specified in Art. 126 of the Arbitration Procedure Code of the Russian Federation, the following must also be attached:

• documents confirming the amount and source of debt;
• constituent documents, as well as a certificate of state registration. registration of your organization;
• list of creditors and debtors (with an explanation of accounts payable and receivable and indication of addresses);
• financial statements;
• a report on the value of your organization’s property, developed by an independent appraiser (if such a report is available).
• otherwise, at the request of the court and the bankruptcy trustee, depending on your specific situation.

How to determine if a company is facing bankruptcy

To prevent bankruptcy, constant monitoring of the state of affairs at the enterprise is necessary. When bankruptcy risks arise, a set of measures to overcome the crisis should be promptly developed.

It is quite difficult to identify the unsatisfactory state of affairs at an enterprise. Financial assessment is an effective tool for doing this.

It makes it possible to identify not only the emergence of negative processes and deterioration of the situation, but also to predict the likelihood of bankruptcy.

The most obvious signs of approaching bankruptcy are:

• large amount of bad receivables;
• lack of working capital;
• increasing the amount of borrowed capital;
• negative financial results for several reporting periods;
• loss of market share and loss of competitiveness;
• imbalance in the production cycle.

Monitoring and analyzing the state of affairs at an enterprise is one of the important tasks of management. Thanks to this, the emergence of financial problems can be identified at an early stage and bankruptcy can be prevented in time.

What is the difference between liquidation and bankruptcy?

Liquidation of a legal entity involves the termination of its activities. In bankruptcy, a legal entity ceases its activities only when the procedures (supervision, external management and reorganization) have not led to the emergence of conditions for full settlement of the organization with creditors.

The decision to liquidate a company may have nothing to do with the organization’s debts, while the bankruptcy procedure is initiated due to the presence of debt to a whole range of persons. Liquidation can be carried out without the participation of a judicial authority (if it is voluntary). In the bankruptcy procedure, the court plays an important and significant role.

From the point of view of the law, the trial is a liquidation bankruptcy procedure, the task of which is to repay the debt of the debtor organization recognized in court through the sale of its property assets and settlements with creditors.

In many cases, the concepts of “liquidation” and “bankruptcy” are closely interrelated and can clearly be considered in the same context.

Liquidation or bankruptcy: what's the difference?

So what is more profitable, bankruptcy or liquidation? It is up to the shareholders/manager of the company to decide, taking into account the specifics of each procedure. If necessary, you should consult with a lawyer who will conduct a preliminary audit of documents and financial statements, which will allow you to make an objective decision.

The order of settlements with creditors in bankruptcy

All claims of creditors of a debtor liquidated through bankruptcy are divided into two categories: current and regular, with current payments having priority. As noted earlier, from September 1, 2014, the concept of current payments was also introduced for voluntary liquidation.

Current payments mean monetary obligations and obligatory payments that arose after the date of acceptance of the application for declaring the debtor bankrupt (clause 1 of Article 5 of the Bankruptcy Law). Creditors' claims for current payments are not subject to inclusion in the register of creditors' claims. Creditors for current payments during the relevant procedures applied in a bankruptcy case are not recognized as persons participating in the bankruptcy case (Clause 2 of Article 5 of the Bankruptcy Law).

According to Art. 134 of the Bankruptcy Law, out of turn, at the expense of the bankruptcy estate, the claims of creditors for current payments are repaid primarily in front of creditors whose claims arose before the adoption of the application for declaring the debtor bankrupt.

Creditors' claims for current payments are satisfied in the following order:

• first of all - demands for current payments related to legal expenses in the bankruptcy case, payment of remuneration to the arbitration manager, with the collection of debts in payment of remuneration to persons who performed the duties of the arbitration manager in the bankruptcy case, requirements for current payments related to payment for the activities of persons, the involvement of which by the arbitration manager to perform the duties assigned to him in a bankruptcy case in accordance with the Bankruptcy Law is mandatory, including the collection of debts to pay for the activities of these persons;
• secondly – ​​demands for payment for the labor of persons working under employment contracts, as well as demands for payment for the activities of persons engaged by the arbitration manager to ensure the fulfillment of the duties assigned to him in a bankruptcy case, including the collection of debts for payment for the activities of these persons, for with the exception of the persons specified in paragraph. 2 p. 2 art. 134 of the Bankruptcy Law;
• in the third place – requirements for utility payments, operational payments necessary for the implementation of the debtor’s activities;
• fourthly, claims for other current payments.

Claims of creditors for current payments related to one queue are satisfied in calendar order.

Creditors' claims are satisfied in the following order:

• first of all, settlements are made on the claims of citizens to whom the debtor is liable for causing harm to life or health, by capitalizing the corresponding time payments, compensation for moral damage, as well as settlements on other claims established by the Bankruptcy Law;
• secondly, calculations are made for the payment of severance pay and wages of persons working or who worked under an employment contract, and for the payment of remuneration to the authors of the results of intellectual activity;
• thirdly, settlements are made with other creditors, including creditors for net obligations.

After settlements with creditors of the third priority, settlements are made with creditors to satisfy the claims under the transaction declared invalid on the basis of clause 2 of Art. 61.2 and clause 3 of Art. 61.3 of the Bankruptcy Law.

The claims of creditors for obligations secured by a pledge of the debtor's property are satisfied at the expense of the value of the pledged item in the manner established by Art. 138 of the Bankruptcy Law.

Identification of creditors and procedure for settlements with them

From the moment the decision is made to liquidate a legal entity, the deadline for fulfilling its obligations to creditors is considered to have occurred (Clause 4, Article 61 of the Civil Code of the Russian Federation).

To comply with the obligation to identify creditors established in paragraph 1 of Art. 63 of the Civil Code of the Russian Federation, the liquidation commission is obliged to:

1. notify each of the creditors in writing about the liquidation of the legal entity (it is best to do this by registered mail with acknowledgment of receipt of the letter);
2. place in the journal “Bulletin of State Registration” an announcement about the liquidation of a legal entity and about the procedure and deadline for filing claims by its creditors [1].

Creditors may present their claims within the period established by the liquidation commission. This period cannot be less than two months from the date of publication of the notice of liquidation (clause 1 of Article 63 of the Civil Code of the Russian Federation). After the end of the period for submitting claims by creditors, the liquidation commission draws up an interim liquidation balance sheet, which contains information about the composition of the property of the liquidated legal entity, the list of claims presented by creditors, the results of their consideration, as well as the list of claims satisfied by a court decision that has entered into legal force, regardless of whether , whether such requirements were accepted by the liquidation commission (clause 2 of article 63 of the Civil Code of the Russian Federation).

Payment of sums of money to creditors of a liquidated legal entity is made by the liquidation commission in the order of priority established by Art. 64 of the Civil Code of the Russian Federation, in accordance with the interim liquidation balance sheet from the date of its approval (clause 5 of Article 63 of the Civil Code of the Russian Federation).

All claims of creditors during the liquidation process can be divided into four groups:

1. claims submitted by creditors within the prescribed period, included by the liquidation commission in the interim liquidation balance sheet;
2. claims submitted by creditors within the prescribed period that were not included by the liquidation commission in the interim liquidation balance sheet;
3. claims of creditors submitted after the expiration of the established period;
4. claims of creditors not submitted before the end of liquidation.

Let's consider how the fate of these groups of creditors' claims is decided within the framework of the current civil legislation.

Claims submitted by creditors within the prescribed period are included in the liquidation balance sheet and are then satisfied in order of priority in accordance with the Civil Code of the Russian Federation. Despite the fact that the final judgment on the inclusion of accounts payable in the interim balance sheet is made by the liquidation commission, this right of the liquidation commission should be used with particular caution. According to the legal position of the Presidium of the Supreme Arbitration Court, set out in Resolution No. 7075/11 dated October 13, 2011, established by Art. 61 – 64 of the Civil Code of the Russian Federation, the procedure for liquidating a legal entity cannot be considered complied with in a situation where the liquidator knew for certain about the existence of unfulfilled obligations to the creditor who demanded payment of the debt. The presentation of a liquidation balance sheet that does not reflect the actual property status of the liquidated legal entity and its settlements with creditors is considered as a failure to submit to the registration authority a document containing the necessary information, which is the basis for refusal of state registration of the liquidation of the legal entity [2].

If a violation of the rights of creditors was discovered after state registration of liquidation, on the basis of paragraph. 2 clause 6 art. 51 of the Civil Code of the Russian Federation, registration of liquidation can be challenged in court and declared invalid. The creditor has the right not to challenge the registration of the debtor’s liquidation, but to present to the liquidation commission for compensation losses caused by the unlawful actions of the liquidation commission, in the manner established by the norms introduced by Law No. 99-FZ, paragraph 2 of Art. 64.1 and Art. 53.1 Civil Code of the Russian Federation. However, even before the courts have not refused to compensate creditors for losses (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 18, 2013 No. 17044/12 in case No. A76-9442/2011).

The next group of claims are claims submitted by creditors within the prescribed period, but not included or partially included in the interim liquidation balance sheet by decision of the liquidation commission. For such cases, the Civil Code of the Russian Federation provides for a special procedure. In case of refusal of the liquidation commission to satisfy the creditor's claims

or evasion of their consideration, the creditor has the right, before approval of the liquidation balance sheet of the legal entity, to file a claim with the liquidation commission. By a court decision, the creditor's claims can be satisfied at the expense of the remaining property of the liquidated legal entity (Clause 4, Article 64 of the Civil Code of the Russian Federation). This wording establishes a mandatory pre-trial procedure for resolving a dispute in relation to a legal entity in the process of liquidation. This means that the creditor, by force of law, is obliged to first submit a corresponding demand to the liquidation commission, and only refusal to satisfy the stated demands or evasion of their consideration entails the right to file a claim against the liquidation commission (Resolution of the Eighth Arbitration Court of Appeal dated May 24, 2012 in case No. A46-15241/2011).

If at the time of drawing up the interim liquidation balance sheet there is a dispute regarding the debt that has not been resolved by the court, then the amount recognized by the liquidation commission is included in the balance sheet. This legal position was formulated by the Presidium of the Supreme Arbitration Court in Resolution No. 18558/13 dated 04/08/2014: claims that are not disputed by the parties both in law and in size must be included in the interim liquidation balance sheet; otherwise, this entails the provision of liquidation balance sheets containing false information to the registering authority

.

What can creditors who missed the deadline, whom we conditionally included in the third group, expect? It’s paradoxical, but true: Law No. 99-FZ excluded clause 5 of Art. 64 of the Civil Code of the Russian Federation, namely this norm explained the procedure for satisfying the claims of such creditors. According to the repealed clause 5 of Art. 64 of the Civil Code of the Russian Federation, if the creditor stated his claims after the expiration of the period

established by the liquidation commission for their presentation, then they are satisfied from the property of the liquidated legal entity remaining after satisfaction of the creditors’ claims submitted on time. According to the author, the reason for the exclusion of paragraph 5 of Art. 64 of the Civil Code of the Russian Federation became a technical error. [3] There is little reason to believe that this was done deliberately, especially since the meaning of paragraph 5 of Art. 64 of the Civil Code of the Russian Federation was previously clarified by the courts (Resolution of the Eighth Arbitration Court of Appeal dated May 24, 2012 in case No. A46-15241/2011).

And finally, the last group of creditors who did not declare their claims. If the creditor was properly notified of the liquidation of the debtor, but did not state his claims, he loses this right from the moment the debtor organization is excluded from the Unified State Register of Legal Entities (a similar case was examined in the Determination of the Supreme Arbitration Court of the Russian Federation dated November 1, 2008 No. 14707/08). Thus, claims of creditors not submitted before the end of liquidation do not in any way affect the liquidation procedure and cannot prevent the liquidation of the debtor.

How debt is formed

Typically, debt accumulates due to strategic management mistakes or unforeseen circumstances. For example, in 2021, many companies were left with debts to creditors due to coronavirus. But it also happens that the company has not operated for years, and the amount of debt at the time of LLC closure exceeds hundreds of thousands of rubles. This is what legal professionals face. persons with debts on taxes and mandatory contributions. We recommend that you always request reconciliation of calculations from the Federal Tax Service, Pension Fund and Social Insurance Fund, even for zero reporting. This will help avoid debt that can no longer be repaid from the company's assets.

The following may make claims for debt repayment:

• Individuals who prove that they suffered moral or physical damage due to the fault of the company;
• Employees who do not receive wages, benefits and other mandatory payments;
• External creditors;
• Founders;
• Budgetary organizations;
• Off-budget funds;
• Other counterparties.

Is it possible to close a business without a liquidation procedure? Risks and nuances of alternative options

A full procedure for liquidating an LLC in accordance with the requirements of the law requires a lot of time and effort. When thinking about how to quickly and easily close a company, LLC participants may underestimate the risks. What are the alternative ways to liquidate an LLC? What are their specifics? In what situations is it acceptable to resort to them, and in what situations should you not?

Says:

Maxim Ronzhin,

Leading lawyer of the business creation and support department of the CLIFF law firm

We wrote about how to liquidate a company according to the procedure established by law here: “Liquidation of an LLC: how long does it take to close a company, and how to avoid problems with the tax office?” Voluntary liquidation by decision of the participants is currently the safest way to get rid of a company, removing maximum risks.

When business owners are faced with the task of closing the company as quickly as possible, and the voluntary liquidation procedure seems too labor-intensive, you can think about alternative options. In their essence, they are not liquidation as such.

Possible options for closing a business:

• voluntary liquidation by decision of the company's participants (Article 61 of the Civil Code of the Russian Federation),
• selling a business to a real buyer,
• change of participants and directors of the company to nominees,
• reorganization (merger of the company with a third-party company or merger of the company with a third-party company to form a new legal entity),
• administrative liquidation (exclusion of a company from the Unified State Register of Legal Entities by decision of the regulatory authority).

The current legislative regulation and practice of tax authorities are not in favor of alternative options. These methods should be considered as working only in rare, special cases.

Selling a business to a real buyer

Selling a business is, of course, not the liquidation of an LLC, but it allows you to solve the problem of getting rid of a company that has become unnecessary.

The main problem is to find a buyer. If the buyer is a third-party, he will probably want to conduct a preliminary audit. And this will entail significant time and money costs and identify problems, if any. At the same time, it is possible that a buyer may need a company with experience in a certain field for a short-term project, for example, to participate in a tender.

It will most likely not be possible to hide problematic issues. Even if the buyer does not have time for a full audit, he will most likely demand that the contract stipulate the seller’s obligation to compensate for losses associated with the company’s activities before the transaction is concluded.

Stages:

• The seller negotiates with the buyer, the parties draw up and agree on a contract.
• The notary reviews the purchase and sale agreement, the parties prepare documents according to the list requested by the notary.
• In the presence of a notary, the parties sign a purchase and sale agreement for a share in the LLC.
• The notary submits an application to the registrar to register a change of LLC participants.
• New members appoint a new director of the LLC.

Please note that a 100% share in an LLC cannot belong to another business company if it has one participant.

Approximate costs:

The costs for a notary will be quite significant: 25 thousand - 150 thousand rubles, depending on the value of the share being sold.

Approximate dates:

On average, preparing documents for a transaction takes 2-3 working days, another 7 working days need to be allocated for registering a change of participant and another 7 working days for registering a change of director.

Total: a little less than a month.

Change of participants and directors of the company to nominees

This option seems to many to be the optimal alternative to voluntary liquidation by decision of the participants. It takes much less time and does not require reconciliations with the tax and pension fund. But this option does not remove the risks from the former owners of the business and the director.

If you change the director and simply leave the company, the new director will only be responsible for what happens from the moment of his appointment. The former director and other controlling persons, for example, members of the company, are responsible for the activities of the enterprise until the director is replaced by a nominal one (clause 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 21, 2017 No. 53 “On some issues related to holding persons controlling the debtor liable in bankruptcy "). In addition, they may be brought to criminal liability under Art. 199 of the Criminal Code of the Russian Federation for evasion of taxes and (or) fees from an organization.

In rare cases, this option may be an alternative to liquidation. It is worth considering him as a worker if:

• the company did not work or worked with relatively low turnover,
• the company has no debt to real creditors or to the budget,
• It is urgent to terminate relations with this organization.

But if it is possible to carry out the liquidation procedure, it is better to focus on it.

Liquidation of an LLC through reorganization

There is also another method of alternative liquidation, such as liquidation through merger with a third-party company or merger with a third-party company to form a new legal entity.

This option was previously popular because it was optimal in terms of cost, timing and risks. Today, the legislator is resolutely fighting such procedures using registration methods.

The fact is that previously the regulatory authority had neither the obligation nor the right to verify the accuracy of information submitted or already included in the Unified State Register of Legal Entities. However, as of January 1, 2021, changes to clauses 4.2 - 4.4 of Art. 9 of the Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs”. Now tax officials can check any information from the Unified State Register of Legal Entities if there are doubts about its accuracy. Moreover, they can check both information that is already in the Unified State Register of Legal Entities (for example, information about the address or director), and information that is only planned to be entered into the Unified State Register of Legal Entities (for example, upon receipt of documents for reorganization, liquidation, amendments to the Unified State Register of Legal Entities or constituent documents) .

Tax inspectorates have created special operational control departments that verify the accuracy of information about companies. When checking, tax officers:

• study the documents and information that the regulatory authority already has,
• obtain explanations from persons who may know about the relevant circumstances,
• receive inquiries and information on emerging issues,
• inspect real estate,
• attract specialists.

The grounds for conducting an inspection are listed in the Order of the Federal Tax Service of Russia dated February 11, 2016 No. ММВ-7-14/ [email protected] These include providing false information about the address, founder and director for registration. There is also such a basis as the submission of documents in connection with the reorganization of a legal entity, if:

• two or more legal entities are involved in the reorganization (that is, all mergers and acquisitions);
• in relation to a legal entity that will cease its activities as a result of reorganization, an on-site tax audit has not been completed;
• in relation to a legal entity that will cease its activities as a result of reorganization, there is an arrears or arrears of penalties and fines.

If the regulatory authority has grounds for conducting an inspection, then if documents are submitted for registration after the expiration of 5 working days allotted for it, the registration will be suspended for 30 days, during which the inspection is carried out. Once registration is suspended, the company will receive a verification requirement. Within 30 days, the organization must either voluntarily make changes to the Unified State Register of Legal Entities or submit documents indicating the accuracy of the information. At this time, managers may be called in for questioning or the location of the company at the address specified in the Unified State Register of Legal Entities will be checked.

If tax officials identify false information, they will decide to refuse registration. Today, the practice is that tax authorities make suspensions for 30 days and carry out operational measures on all changes of address and reorganizations.

Another trend is to schedule on-site tax audits for companies undergoing reorganization. The rule on the possibility of ordering such an audit has been in effect for a long time (clause 11 of Article 89 of the Tax Code of the Russian Federation), but only in the last year have tax authorities begun to actually use it.

Practice shows that at the moment, carrying out a reorganization procedure as a way to close a company is almost impossible.

Administrative liquidation

Another alternative to liquidation is to simply leave the company. Sooner or later, the tax authorities themselves may exclude it from the Unified State Register of Legal Entities (Article 64.2 of the Civil Code of the Russian Federation).

This method of terminating activities is suitable only for those who do not intend to engage in business in the future.

The fact is that tax authorities refuse state registration if the founder or director of the organization should be persons who were previously seen as participating in “problem” organizations (sub-clause “f”, paragraph 1, article 23 of the Federal Law of 08.08.2001 No. 129 -FZ). If you were:

• a participant with an ownership share of 50% or more, or
• the head of a company that was expelled from the Unified State Register of Legal Entities,

and at the time of exclusion, the company had a debt to the budget, then when submitting any request to enter information into the Unified State Register of Legal Entities (for example, when creating a new company, purchasing a share in a new LLC, appointing a manager, or even when changing the percentage of ownership in the authorized capital of an LLC, where you are the owner in good faith) the tax authorities will refuse registration.

It works as follows: until the abandoned company is expelled from the Unified State Register of Legal Entities, it remains obligated to submit reports. For failure to submit reports, the company is fined, and it incurs a debt to the budget. This debt of fines becomes the basis for a ban on the registration of participants and directors of the abandoned company.

The registration ban is valid for three years from the moment the abandoned company is removed from the register.

Please note that the regulatory authority has the right, but not the obligation, to make a decision to exclude an inactive legal entity from the Unified State Register of Legal Entities. Therefore, many entrepreneurs unexpectedly encounter situations where business processes are simply blocked.

EXAMPLE

One LLC was planning a reorganization in the form of a spinoff in order to optimize the business structure. Some of the participants—individuals—moved to the new society, while others remained in the old one. Tax officials refused to register the reorganization because one of the participants in the main company did not have the right to create new companies for three years. The fact is that he was once a participant in another company (more than 50% of ownership), which was excluded from the Unified State Register of Legal Entities with debt. At that time, the business did not take off and they simply forgot about the company; they did not submit reports. Penalties have accumulated due to failure to submit reports.

Tax authorities can exclude a company even if it owes taxes, fees, penalties and sanctions to the budget. However, a company cannot be excluded administratively if bankruptcy proceedings are initiated against it.

On a note

In some cases, tax authorities may conduct an audit and, without your participation, add additional amounts to be collected by calculation (if the company is not available, does not respond and cannot request documents from the manager). If the amounts of additional charges turn out to be large, tax authorities may file a claim to bring the managers and participants of the company to subsidiary liability for its debts (clause 3.1 of Article 3 of the Federal Law of 02/08/98 No. 14-FZ “On Limited Liability Companies”).

The tax authority does not need to prove that the manager, through his actions, brought the company to an insolvent state. It is enough to prove that:

• a demand was sent to the organization to pay the debt to the budget,
• there is a decision of the tax authority to hold an organization or manager accountable for committing a tax offense, for example, for non-payment or incomplete payment of tax amounts (Article 122 of the Tax Code of the Russian Federation);
• the amount of the principal debt to the tax office (taxes, penalties and fines are not taken into account) exceeds 50% of the total amount of creditors’ claims (subclause 3, clause 2, article 61.10 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”) .

In addition, Art. 45 of the Tax Code of the Russian Federation expanded the powers of tax authorities to collect arrears from any person interdependent with the company.

If the taxpayer has been assessed additional taxes and has not repaid the debt within three months, then the tax authority through the court can collect the arrears:

• from a subsidiary company (if the borrower is the parent company),
• from the parent company (if the debtor is a subsidiary);
• from any person (even not formally connected), if the tax authority proves in court their relationship with the debtor.

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Liquidation of an LLC: how long does it take to close a company, and how to avoid problems with the tax office?

06.10.2020
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Nowadays it takes at least 4-5 months to liquidate an LLC. So that this process does not drag on for a longer period and...

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Tags: abandoned companyexclusion from the Unified State Register of Legal Entitiesliquidation of LLCtax auditstax authorityinaccurate informationmark of unreliabilityreorganization

General provisions

Today, the process of voluntary liquidation without bankruptcy of a legal entity is the optimal solution. Since it will not require any additional costs. The procedure is simplified as much as possible, but there are certain subtleties.

All of them are reflected in legislative documents. Despite its simplicity, you need to remember the main features of liquidation. If there is an error, not only may there be a delay, but also penalties.

There are subtleties depending on the field of activity of the enterprise. For example, when liquidating a bank without bankruptcy, you will need to contact the Central Bank of the Russian Federation and also perform a number of other actions.

Accordingly, the standard step-by-step process will vary slightly.

If you do not have the necessary experience in performing the procedure, you should consult a qualified specialist. Especially when it comes to stopping the bank.

Liquidation without bankruptcy of the developer and lending company will require the revocation of a special license. For certain types of activities (for example, those indicated above), it is mandatory.

When calculating the volume of work, it is worth taking into account the presence of debts, as well as the scale of the enterprise’s activities and the presence of debts.

What it is

All legal entities in the Russian Federation, regardless of the format of activity or form of organization, are designated in the Unified State Register of Legal Entities.

In turn, upon termination, you will need to delete data from this registry. This procedure is referred to as “liquidation”. The reasons can be very different.

But they are divided into two main categories:

1. Voluntary.
2. Forced.

Also, the liquidation format itself may differ depending on the goals set for the founders.

At the moment, it can be accomplished by merger, reorganization, accession, replacement of the founder, general director.

One of the solutions is the transfer to the management of foreign individuals and legal entities.

The simplest option would be simple liquidation, on a voluntary basis. But, nevertheless, in all situations without exception, an audit by the federal tax service is required.

Therefore, before proceeding with independent liquidation, you will need to check in advance the accuracy of all data in the reporting. This applies to both tax and accounting.

Often, it is through liquidation that companies try to hide the fact of conducting illegal activities.

If this is established and proven, the bank will face a large fine. We should not forget about the need to carry out liquidation in the prescribed manner.

Who does it apply to?

The main and most important stage of liquidation in the absence of accounts payable is the adoption of an appropriate decision by the founders and other authorized persons.

The list of such authorized citizens is again determined by law, depending on the operating mode of the enterprise and its organizational form.

The process itself involves the formation of a liquidation commission and the appointment of a liquidator.

But it should be remembered that the founder is not always able to devote enough time to completing the process. If such a situation occurs, it is possible to simply transfer all relevant powers to a trusted person.

To do this, you simply need to issue a power of attorney in the appropriate form.

Moreover, it will be possible to transfer such powers:

• just to a trusted person;
• specialized institution.

Today, a large number of organizations are engaged in closing individual entrepreneurs, LLCs and other institutions for the appropriate payment. However, the cost of such services may fluctuate.

Particular attention should be paid to the choice of the enterprise that will carry out liquidation. Since there are many scammers operating in this area. Therefore, you should contact any institution only on recommendation.

It is not advisable to enter into relevant agreements with companies that have been present on the relevant market relatively recently. Concluding an appropriate agreement with scammers will lead to unpleasant consequences.

Moreover, you can be left not only without the money paid for the proposed work, but also be punished for legally illiterate actions.

According to the law, the founder is responsible for all mistakes made during the liquidation of the enterprise - if this process is carried out by proxy by a third party.

If for some reason a situation arises where there is an obvious violation of the law, you should immediately go to court.

All controversial issues must be resolved peacefully. If for some reason this is impossible, only then does it make sense to go to court.

Where to go

Liquidation of LLCs and other companies involves contacting a number of different institutions. The list is standard, as when closing ordinary joint stock companies - with a few exceptions.

For 2021, you will need to contact the following government agencies:

Today, the Central Bank of the Russian Federation is solving an extensive list of various tasks. One of the key ones is constant monitoring of the activities of other credit institutions. In turn, the Central Bank of the Russian Federation issues the necessary licenses.

When a commercial bank of any format is liquidated, the Bank of Russia revokes its license and performs a number of other mandatory functions.

Therefore, when making an appropriate decision on liquidation, it will be necessary to notify the Central Bank of the Russian Federation first.

Reorganization and liquidation should always be carried out under the authority of the tax authorities. Since it is the Federal Tax Service Inspectorate that makes the appropriate changes in a special state register.

The main package of documents will be sent specifically to the tax service. The list of papers required in this case may require additional ones due to the specifics of the operation of the liquidated enterprise.

A preliminary consultation with a Federal Tax Service employee will help you avoid difficulties in the future.

In almost all cases, without any exceptions, banks have a whole staff of different employees. Accordingly, it is necessary to make contributions to state extra-budgetary funds.

Otherwise, they will be accrued completely automatically - if data on liquidation is not submitted. The application algorithm is standard, supported by a copy of the relevant decision of the founders of the enterprise.

If the number of employees dismissed during liquidation is more than 15 people at the same time, notification of employment authorities is required.

This issue is regulated by a specialized NAP - Resolution of the Council of Ministers of the Government of the Russian Federation No. 99 of 02/05/93. The notification period is established.

It depends proportionally on the number of people fired from work at a time. For example, if the state involves 500 or more employees, notification is sent 90 days in advance.

Moreover, the relevant authorities will need to be notified by registered mail in accordance with the established legislative procedure.

In general, the entire process of terminating registration in the Unified State Register of Legal Entities and revoking the license of a credit company is established at the state level. Violation is not acceptable. In some cases, a fairly large fine is imposed.

How debt-free liquidation is carried out in Moscow can be found in the article: debt-free liquidation. If you are interested in the question of how a bank is liquidated, read here.

Stages of declaring an enterprise bankrupt

The process of declaring a company's financial insolvency includes four stages:

1. observation;
2. financial recovery;
3. external management;
4. bankruptcy proceedings.

At the observation stage, the analysis of the debtor’s activities is carried out by the arbitration manager, who, after completing the inspection, reports its results to the judicial authority, creditors and directly to the debtor himself or his representatives. The main emphasis is on identifying signs of deliberate or fictitious bankruptcy - the manager checks whether the company is really insolvent and whether the reasons for the deterioration of its financial performance are natural.

In addition, the arbitration manager may see the possibility of restoring the company's solvency. For this purpose, the stages of financial recovery and external management are introduced.

The financial recovery stage may imply additional cash injections into the company from creditors, third parties or from the state budget. In addition, mechanisms such as merger, acquisition, division of an organization can be applied, which also returns the solvency of the company, preventing the liquidation of a legal entity or individual entrepreneur. This stage is often present in the process of recognizing the financial insolvency of a debtor, especially when it comes to strategically important enterprises.

The stage of external management can also save the company, since it involves the sale of part of the property, the dismissal of some employees, but without harm to the activities of the organization as a whole.