Alternative liquidation or bankruptcy? It's time to change bad habits. Alternative Liquidation Risks

Recently, the Criminal Code of the Russian Federation was replenished with a new article.:

But our businessmen with rich experience in "opening and closing firms" now either do not know this or do not realize the new danger that lies behind a simple change to face value - an individual and act on the knurled "leak and forget."

Previously, everything was simple - they brought the company for liquidation, changed the founder and director to a bum-nominal-investor and that's it, there is no responsibility, since the new director is "responsible" for everything. Everything "rolled", so everything will be the same now. In terms of money, it is inexpensive, in terms of time, the directors are the same.

Now, with the advent of articles 173.1, 173.2, the situation has changed. Already now there is a practice and guilty verdicts. But the most interesting thing will come next, when the director is nominal in firms. Sooner or later, a very economical customer will appear who decides to liquidate his company in the cheapest way, while keeping silent about the problems in the company.

Further, everything is simple, they call a new director of par for the company, where there are problems, on which, as it turns out, another hundred companies, which, of course, " knows nothing, was not going to conduct activities and was brazenly misled a hundred or two hundred times". And he was misled, together with lawyers - that is, a group of persons by prior agreement. Up to five years in prison. And the testimony from the former founders, they say, "we just sold the company," sounds very unconvincing here, and most importantly - not appropriate.

That is, only on the testimony of one new director of par value is it possible to initiate under Art. 173.1 of the Criminal Code of the Russian Federation. It would be naive to believe that the new director will turn out to be a person of principle and take everything upon himself, since otherwise he will go under 173.2 for providing documents, where a real term of imprisonment is also quite possible. So he will write whatever is needed.

Next, the house of cards begins to crumble. After all, if the new director of the nominee testified that he was misled about the company LLC "Vasilek", then, accordingly, he was also misled about LLC "Snezhinka" and all other hundreds of companies. What does it mean for successful and fruitful work of law enforcement agencies with former founders and the directors of those firms who have taken advantage of the alternative liquidation at par. Particularly desperate businessmen who managed to liquidate companies with debts in this way, rewriting everything to a figurehead, risk attaching a couple more articles from the criminal code to 173.1 of the Criminal Code of the Russian Federation.

Our company is able to provide detailed information and advise you on the liquidation of the enterprise. To do this, you just need to have the appropriate founding documents with company seal. We will do the rest of the steps.

One of the most serious problems of modern enforcement proceedings is the existence of a mass of ways not to pay the debt quite legally. No, this is not a delay or an installment plan for the execution of a court decision. This phenomenon is called "alternative methods of liquidation" of legal entities. Dozens law firms in Moscow and throughout Russia they offer similar services (to verify this, just type “alternative liquidation” in any search engine).

What is the liquidation of a legal entity, we all know very well. A legal entity can be liquidated in three cases:

Deciding on liquidation by the founders;

Making a decision on liquidation by the court;

Recognition as insolvent (bankrupt).

At the same time, if the value of the property of a liquidated legal entity is insufficient to satisfy the claims of creditors, it can be liquidated only in the bankruptcy procedure.

But the term "alternative liquidation" appeared in Russian reality relatively recently. Behind this decent façade hides a rather ugly essence.

So what is "alternative liquidation"? With the help of this term, it is now customary to denote the departure of a legal entity from liability to its creditors.

A limited liability company is the most popular organizational and legal form in Russian Federation. There are many reasons for this, from ease of registration to ease of management. And it is LLCs that most often use “alternative methods” of liquidation.

Imagine typical situation: The LLC is indebted to its creditors, it obviously cannot pay off all the debts, but I don’t want to give up my property either. Proceed as follows:

1. Withdraw all assets from the company (fictitious purchase and sale transactions, other ways of withdrawing assets);
2. Depending on ingenuity (and in a different order):

• change founders and directors,
• change the place of registration of the company (transfer the company to some remote region),
• change the name of the company,
• in the end, they announce their reorganization in the form of a merger (rarely a merger).

After the reorganization, the legal entity-debtor disappears, it ceases to operate. All of its debts are transferred by way of universal succession to another LLC. At the same time, in the process of reorganization, the transfer act indicating the debt is safely “lost”.

Everything, the liquidation is completed. It is impossible to collect debt from such a company. There is no property, all assets were withdrawn before the reorganization. To establish the succession, you will need time during which the debtor can again change the name and reorganize again. Vicious circle.

How to fight?

This part of my post will be much shorter than the previous one, for obvious reasons (if there were effective ways to combat this phenomenon, it would not even be possible to talk about the widespread use of such methods of evading responsibility). Within the framework of the current legislation, there are only a few ways to combat “alternative liquidation”:

Initiation of the bankruptcy procedure and bringing the head and founders of the debtor to subsidiary liability, contesting the debtor's transactions within the framework of the bankruptcy procedure (but the bankruptcy procedure is quite an expensive pleasure, and all the costs of the procedure if the debtor's property is insufficient are borne by the applicant);

Recognition of the reorganization as illegal in court (even if it succeeds, the practical meaning of this method seems doubtful, since instead of one insolvent debtor we will get another insolvent debtor);

Bringing to criminal responsibility the head and founders of the debtor (In 99 cases out of a hundred, we will be refused to initiate a criminal case due to the fact that there are civil law relations);

Establishment of succession and subsequent collection of debt from the reorganized LLC (this method is hardly promising, since the new debtor has no property, usually it is a fictitious LLC).

Almost the only effective way is bankruptcy, since challenging the debtor's transactions and bringing the director and founders to subsidiary liability are possible only as part of the bankruptcy procedure. But initiating bankruptcy proceedings seems appropriate only if there is a significant amount of debt. Fans of “alternative liquidation” try not to make mistakes, rarely when their debt to one creditor exceeds a million rubles.

Thus, it remains only to advise conscientious entrepreneurs to choose counterparties more carefully and always remember that Russian market"societies with unlimited irresponsibility" operate quite legally.

A legitimate way to terminate the activities of a legal entity is its liquidation. The liquidation of a legal entity entails its termination without the transfer, by way of universal succession, of its rights and obligations to other persons.

The official liquidation of firms in St. Petersburg, as well as throughout Russia, is carried out on the basis of the decision of the company's participants and implies the complete completion of settlements with counterparties and tax authorities, the distribution of property and profits between the company's participants. However, official liquidation not only implies a relatively long procedure (from 3 months), the need for publications, but also contains the risk of conducting an on-site tax audit. An on-site audit during liquidation (reorganization) is carried out regardless of how many on-site audits were carried out in relation to the taxpayer in the current calendar year.

Such inspections are not subject to restrictions on the inadmissibility of conducting more than two on-site inspections during a calendar year.

An on-site tax audit during liquidation is carried out for all taxes. The calculation of taxes for the three calendar years preceding the year of liquidation (reorganization) is subject to verification. This includes reactivating a period that has already been checked earlier during another on-site inspection. This feature is established by paragraph 11 of Art. 89 of the Tax Code of the Russian Federation.

This risk is often considered critical. In a number of cases, it is precisely because of the risk of an on-site tax audit that alternative liquidation tools are resorted to. In addition, we remind you that traditional liquidation implies the need to complete settlements with counterparties and the budget. If there is not enough money, then the management of the organization, from the point of view of the law, must decide on the liquidation of the company through bankruptcy proceedings.

Liquidation through bankruptcy

Bankruptcy is an even longer procedure. Terms of liquidation through bankruptcy - from 6 months (with the so-called "short" procedure from liquidation). In practice, it is correct to call the terms from 9 months. The bankruptcy procedure takes a lot of time and is expensive, as it implies the need to pay the remuneration of the arbitration manager (from 30 thousand rubles per month) and cover other expenses necessary for bankruptcy (publications, evaluation, etc.). It is desirable that the procedure be accompanied by a lawyer specializing in bankruptcy, since the interests of the arbitration manager and the company's management, based on the provisions of bankruptcy law, may not coincide. The arbitration manager is obliged by law to take measures to repay the debt to creditors. A short procedure is less preferable for him, since in this case he loses his monthly income and bears the risks of incomplete compliance with the requirements of the legislation on the formation of the bankruptcy estate. The absence of a lawyer at the stage of assessment and execution of bankruptcy procedures significantly increases the risks of bringing to subsidiary liability for the company's debts. For more information about the role of a lawyer at the stage of bankruptcy support, see the articles "and" Bankruptcy Support ".

Alternative liquidation through change of ownership and reorganization

The desire to avoid scrutiny, publicity or the desire to quickly get rid of the business after being elected to a position incompatible with the business, or leaving for the civil service, led to the fact that business leaders also resort to alternative liquidation and its variations:

1. Change of CEO and change of owner. The term of such parting with the business is calculated from 15 days. In this case, the organization continues to function, but the general director, the founder, changes in it. The change of ownership takes place best case through sale. By resorting to this method, the business leader expects that responsibility passes to other persons. Contrary to the misconception that this method makes it possible to avoid wide publicity due to the lack of the need for publication, we note that there is an obligation to publish. It is established by paragraph 4 of Art. 6 of the LLC Law. Systematic non-compliance with the requirement is a consequence of the absence of a legally established sanction. If, as a result of such a “sale”, the organization ceases to operate, then it is subsequently excluded from the Unified State Register of Legal Entities at the initiative of the tax authority, and this is a good option for completing the fate of the organization.
2. Reorganization by affiliation. The term of such completion of the existence of the company is from 6 months. In this case, the organization is excluded from the Unified State Register of Legal Entities, but it has a legal successor. By resorting to this method, business management expects that responsibility also passes to other persons. This method does not guarantee that verification can be avoided (see clause 10, article 89 of the Tax Code of the Russian Federation).

Demand creates supply. Since there is demand, the market responds with an abundance of proposals for alternative liquidation. Sellers of such services do not give any guarantees, do not think much about documenting and, in some cases, openly understatement when advising on the benefits of alternative liquidation. As a result of turning to such businessmen, the debts and problems of the first persons do not disappear, and for creditors the procedure for bringing to responsibility becomes more expensive and stretches in time. The increase in the cost of the recovery procedure, indeed, weeds out some of the creditors. If the creditor is principled or if the amount of debt is large, then there is no escape from responsibility.

Are alternative methods of liquidation legal?

It is widely believed by businessmen that alternative liquidation will free management from liability and risks, unlike the traditional one. By resorting to alternative liquidation, businessmen expect to eliminate the risk of field tax audits, reduce the duration of the procedure, the volume paperwork, significantly reduce the cost of liquidation. The popularity of the procedure is due to a misunderstanding of the law and the legal consequences of such actions. As noted earlier, the change of the first persons of the company makes it possible to avoid verification, the reorganization is already deprived of this advantage. Alternative liquidation- this is not a real liquidation in the understanding of the law, it really provides an opportunity to evade responsibility, but only with a careful selection of the appropriate "initial data" and only in the absence of strong creditors. The main advantage of the liquidation of organizations in statutory order, with strict observance of all procedural requirements, in that it cannot be canceled. Due to the excessive burden of tax administration, not all enterprises, especially in large cities, are subject to inspection even in the event of official liquidation.

Change of first persons (change of director + sale) - the cheapest and fastest option on the market legal services. Nevertheless, all the “advantages” of registering as a nominal owner and owner in the event of an unfavorable development of events and active creditors lose their relevance and become a headache for real directors and owners.

The legislative framework

Expectations that the firm will eventually "die" by decision of the registration authority as not operating on the basis of paragraph 1 of Art. 21.1 federal law dated 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs' are not always justified. It should be noted that the tax authorities have the right, but are not obliged to exclude companies that have ceased operations from the Unified State Register of Legal Entities, paragraph 4 of this article completely prohibits the exclusion of an “inactive company” from the register when tax authorities receive statements from creditors that their interests are violated by the upcoming exclusion. It should be remembered that pseudo-buyers of a business do not plan to engage in entrepreneurial activity. This means that they will not provide to the tax authorities and off-budget funds reporting established current legislation. This is in accordance with paragraph 1 of Art. 119 of the Tax Code of the Russian Federation entails the imposition of a fine on a legal entity in the amount of 5% to 30% of the unpaid tax amount (but not less than 1000 rubles). As a result, the “abandoned company” acquires the status of a debtor to the budget and creates another creditor for itself. The consequence of arrears to the budget is the impossibility of excluding an inactive legal entity from the register because of the danger of causing damage to the budget (creditor).

Judicial practice analysis

An agreement signed by the parties for the sale of shares in authorized capital(or shares), which is not really aimed at giving the “buyer” the right to participate in the management of the company and receive profit from its activities, is a fictitious transaction made with the aim of withdrawing from the list of participants the persons who actually own the company. According to Art. 170 of the Civil Code of the Russian Federation, a transaction made “for the sake of appearances”, without the intention to create appropriate legal consequences (an imaginary transaction), is void, the consequences of its invalidity are applied to it in the form of the return by the parties of everything received under the transaction (Article 167 of the Civil Code of the Russian Federation). As a result, the "sellers" again become full members of the company with all the ensuing consequences and existing problems (debts, non-payments, etc.), for which alternative liquidation was chosen to get rid of.

In the framework of bankruptcy cases, in order to bring to subsidiary liability real, and not nominee directors, do not even resort to challenging the deal and prove the nominee of the newly appointed persons. So, considering claims for bringing to subsidiary liability, the court assesses the arguments of the head as nominal and, upon confirming such an argument, attracts not the director who was listed as such on the date the relevant procedure was introduced, but the previous one. This approach is reflected in the decisions 9ААС dated 10/05/2016 in case No. А40-99980/2010, 13 ААС dated 09/28/2016 in case No. А56-1928/2015, 17 ААС dated 09/14/2016 in case No. А60-50119/2013 , 17 AAC dated 09/06/2016 in case No. A60-62089 / 2015, dated 07/15/2016 in case No. A40-177759 / 2014, rulings of the Arbitration Court of the Republic of Bashkortostan dated 10.29.2016 in case No. A40-11401 / 2014, Perm Arbitration Court region dated September 27, 2016 in case No. A50-11083 / 2015, the Arbitration Court of the Perm Region A50-8803 / 2015, the Arbitration Court of St. Petersburg and Leningrad region dated December 30, 2015 in case No. А56-71401/2014.

Preliminary contestation of transactions to change the first persons entails blurring of responsibility, see the Arbitration Court ruling Chelyabinsk region dated 09/06/2016 in case No. A76-42471 / 2009.

Analysis judicial practice testifies that companies offering alternative liquidation and a formal approach to transactions make it easier to hold liable, see Ruling 7AAC of 03.10.2016 in case No. A27-5608 / 2015, Ruling 9AAC of 05.10.2016 in case No. A40-99980 / 2010. Nevertheless, in all cases, it is not enough to declare the nominal value, this circumstance must be proved, see Resolution 9AAC dated 09/08/2016 in case No. A40-7293 / 2015.

Contrary to the existing misconception about the impossibility of proving the above circumstances when considering such court cases, the evidence base is collected and accepted by the courts quite easily. In practice, in order to invalidate an imaginary transaction, it is enough to find the “buyer” of the company (in the presence of passport data, security structures are engaged in this), interrogate and provide the court with the evidence obtained. In addition to bringing to subsidiary liability for the debts of the company, for would-be sellers there is a risk of prosecution under Art. 173.1 of the Criminal Code of the Russian Federation.

Recall that this norm provides for responsibility for the formation (creation, reorganization) of a legal entity through nominees, as well as for the provision of state registration legal entities and individual entrepreneurs, data that led to the entry of information about nominees into the unified state register of legal entities.

Liability under Art. 159, and in some cases under Art. 199 of the Criminal Code of the Russian Federation. The risk of bringing to subsidiary liability for the debts of the “sold” organization fully concerns not only the current managers and founders of companies, but also their former owners and CEOs, including nominal ones.

Similar consequences occur during reorganization:

• the reorganization transaction is recognized as invalid as imaginary or sham with the corresponding consequences in the form of bilateral restitution - the return to the Unified State Register of Legal Entities of the companies participating in this reorganization;
• when initiating bankruptcy proceedings against the legal successor, the persons who controlled the reorganized company are brought to subsidiary liability for the obligations of the debtor;
• initiation of a criminal case on the grounds of a separate offense under Article 173.1 of the Criminal Code of the Russian Federation.

We hope that this article will allow you to critically assess the prospects for alternative liquidation and take the right steps. Opening, running and closing a business should be aware of the consequences of the actions taken. Our task is to reduce the risk of losses at each stage of the company's development, to help find the necessary answers. If you have become a hostage of alternative liquidation, we will help you find a way out of the current situation, for the rest we will reduce the likelihood of its occurrence.

Alternative liquidation of an LLC is a procedure in which a legal entity is liquidated with a minimum of costs and tax audits. This technology is quite in demand, as it reduces the time for all operations. It does not involve significant costs, as a standard procedure. No multiple checks required government bodies, which is important if a legal entity has debts and other controversial issues.

There are two main ways of alternative abolishment: through the change of CEO and reorganization. In the second case, the company ceases to exist, while with a change of key persons, it can continue to work.

Liquidation through the change of the general director and founders of the LLC: features of the procedure

This alternative liquidation of an LLC is a procedure in which the company is sold to third parties. The new owner can independently decide the issue with her future fate:

• Terminate the business of the company;
• Change her specialization and continue working;
• Continue activities without making changes.

After changes are made regarding the composition of the legal entity, the old owner ceases to be responsible for the current activities of the company.

Consider the advantages of this option:

• It will take only 10-25 days to complete the procedure;
• This is one of the most inexpensive elimination methods;
• The founders of the LLC take a minimal part in the process.

However, it also has a lot of disadvantages:

• The information remains in the Unified State Register of Legal Entities, and therefore the sword of Damocles continues to hang over the old owner in the form of criminal liability for previous operations within the company;
• Increased risk of vicarious liability. Information about the concept of subsidiary liability;
• If a purchase and sale transaction is being drawn up, a large package of documents will be required;
• To complete a transaction at a notary, a person expects high fees.

If violations were revealed during the past stages of the company's activities, then even after the change of owners and management of the company, it is the previous owners who will bear the responsibility.

Reorganization of a legal entity

The reorganization of a legal entity can be carried out in various ways. However, in any case, the procedure involves the termination of the existence of the company in its current format. It passes into the ownership of the recipient company. Reorganization is carried out in two ways:

• merger. It involves the abolition of the former legal entity. All rights to the company are transferred to the new LLC. To do this, you will need to register a new person in the Unified State Register of Legal Entities. The procedure will take about a week.
  Before the end of the procedure, the liquidated company is required to go through certain legislative processes. These include notifying creditors of the transaction. It is necessary to send them special notices with confirmation of their receipt, as well as publish the news of the abolition in the State Registration Bulletin.
  A merger is carried out, after which a certificate of termination of the legal entity is provided. A certificate of registration of the successor is also issued. All LLC tax liabilities must be paid by the new owners.
• Accession. It looks like a merger, but the mechanisms differ in the following way - when merged, all companies terminate their work, except for the one to which the rights to all other abolished LLCs will be transferred.
  Among the advantages of the event, it can be noted that it is not required to obtain a certificate of absence of debt from the FIU. This simplifies the process, makes it faster. After the procedure is carried out, you can get a certificate confirming it, as well as the termination of the activities of other companies.

The merger involves the abolition of the former LLC.

Consider the benefits of reorganization:

• There is an exclusion of a legal entity from the Unified State Register of Legal Entities;
• It is not required to collect many documents;
• The event will take about three months.

Among the disadvantages of the procedure are:

• If creditors submit their claims, it will be impossible to reorganize. First you need to fulfill all the necessary requirements;
• Increased risk of subsidiary liability of the former owners.

These are the most common methods, which are an alternative to the standard procedure. Their choice depends on the preferred timing of the event, as well as on the organization's debts.

When are alternative methods the best solution for a business?

The standard abolition process is fraught with trips to various authorities, collecting big package documents. List of documents for the liquidation of an LLC. You will need to obtain all necessary permits, extracts. This is a lengthy undertaking, especially if the liquidation is carried out through bankruptcy. The longer the process drags on, the more expenses it will require. You will have to pay not only fees, but also pay salaries to the current state.

Alternative liquidation of an LLC will be appropriate in the following cases:

• Need to save time;
• Additional costs must be avoided;
• The company has debts;
• The organization has violations related to taxation.

In all these cases, the methods will make the whole process easier and more economical.

The easiest method of liquidation is to change the CEO and founders.

Possible risks

If alternative methods are used, the organization is likely to face increased scrutiny. They are carried out in order to prevent fraud and tax evasion.

When liquidating a legal entity, the following risks are possible:

1. Criminal liability. It occurs if the change of leadership was carried out with the participation of nominees. Liability risks are greatly increased if the operation was carried out solely for the sake of abolition;
2. Return of the person to the previous owner. Produced if checks have been carried out. If the new organization to which the rights to the LLC are transferred does not perform any activity, this may become the object of attention of the tax authorities. The company returns to the former founders. This leads to wasteful costs and the need for a second eradication exercise;
3. Declaring bankruptcy intentional. A similar result may occur as a result of checks on the capacity of a new company that was formed as a result of reorganization. Risks increase if there are uncovered liabilities.

You can significantly reduce the likelihood of negative scenarios. To do this, the LLC should not arouse any suspicion. She should not have debts, disputed obligations. How to close an LLC with debts. It is easier to carry out both with the standard and with the alternative procedure. Therefore, if the company has violations, it is better to eliminate them first. If this is not done, all liquidation actions may be spent in vain.

In any case, the previous owners are responsible for the violations committed in the course of past activities.
As a result, they will have to spend money not only on the liquidation itself, but also on the repayment of debts, a repeated abolition event.

When would alternative methods be appropriate? It is optimal to use them when the organization has covered all its debts and paid taxes. It may happen that the procedure will be carried out without any consequences. However, the probability of this is very low, because if the LLC has problems, it will have to go through various checks.

Closing the company in alternative ways looks tempting only at first glance. Here you need the help of a competent lawyer, and you yourself need to be prepared, at least theoretically. Here is the opinion of experts on this topic:

Alternative options for the abolition of a legal entity can be applied. However, it is recommended to do this only in order to reduce the time for the event, as well as costs. In this way, it is difficult to avoid paying debts and paying taxes. Most likely, the founders will incur double costs and problems if they decide that this is a way out of the current situation. The simplest method of liquidation is to change the CEO and founders. This process takes a minimum of time. It does not require a lot of documentation, and costs are reduced. good option reorganization is also considered.