Phorum alternative liquidation criminal liability. Alternative Liquidation Risks

1.1. This document defines the policy of the Limited Liability Company "" (hereinafter referred to as the Company) regarding the processing of personal data.

1.2 This Policy has been developed in accordance with the current legislation of the Russian Federation on personal data.

1.3 This Policy applies to all processes for the collection, recording, systematization, accumulation, storage, clarification, extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data, carried out using automation tools and without the use of such funds.

1.4. The policy is strictly followed by the Company's employees.

1. Definitions

personal data- any information relating directly or indirectly to a specific or identifiable natural person (subject of personal data);

operator - government agency, a municipal authority, a legal or natural person, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;

processing of personal data- any action (operation) or a set of actions (operations) performed using automation tools or without using such tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;

automated processing of personal data- processing of personal data using computer technology;

dissemination of personal data- actions aimed at disclosing personal data to an indefinite circle of persons;

provision of personal data- actions aimed at disclosing personal data to a certain person or a certain circle of persons;

blocking of personal data- temporary suspension of the processing of personal data (unless the processing is necessary to clarify personal data);

destruction of personal data- actions, as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material carriers of personal data are destroyed;

depersonalization of personal data- actions, as a result of which it becomes impossible to determine the ownership of personal data by a specific subject of personal data without the use of additional information;

personal data information system- a set of personal data contained in databases and providing their processing information technologies and technical means.

1. Principles and conditions for the processing of personal data

3.1. The processing of personal data is carried out on the basis of the following principles:

1) The processing of personal data is carried out on a legal and fair basis;

2) The processing of personal data is limited to the achievement of specific, predetermined and legitimate purposes. It is not allowed to process personal data that is incompatible with the purposes of collecting personal data;

3) It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other;

4) Only those personal data that meet the purposes of their processing are subject to processing;

6) When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, their relevance in relation to the stated purposes of their processing, are ensured.

7) The storage of personal data is carried out in a form that allows you to determine the subject of personal data no longer than required by the purposes of processing personal data, if the period for storing personal data is not established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. Processed personal data is subject to destruction or depersonalization upon achievement of the purposes of processing or in case of loss of the need to achieve these purposes, unless otherwise provided by federal law.

8) The Company in its activities proceeds from the fact that the subject of personal data provides accurate and reliable information during interaction with the Company and notifies the Company's representatives about changes in their personal data.

3.2. The company processes personal data only in the following cases:

• the processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
• the processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts;
• the processing of personal data is necessary for the execution of a judicial act, an act of another authority or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
• the processing of personal data is necessary for the performance of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as to conclude an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be the beneficiary or guarantor;
• the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data, if obtaining the consent of the subject of personal data is impossible;

3.4. The Company has the right to entrust the processing of personal data of citizens to third parties, on the basis of an agreement concluded with these persons.
Persons processing personal data on behalf of Start Law Company LLC undertake to comply with the principles and rules for the processing and protection of personal data provided for by Federal Law No. 152-FZ "On Personal Data". For each person, a list of actions (operations) with personal data that will be performed by a legal entity processing personal data, the purposes of processing, the obligation of such a person to maintain confidentiality and ensure the security of personal data during their processing, as well as requirements for the protection of processed personal data data.

3.5. If the Company entrusts the processing of personal data to another person, the Company shall be liable to the subject of personal data for the actions of the said person. The person who processes personal data on behalf of the Company is liable to the Company.

3.6. Acceptance based solely on automated processing personal data decisions that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests, the Company does not carry out.

3.7. The Company destroys or depersonalizes personal data upon reaching the purposes of processing or in case of loss of the need to achieve the purpose of processing.

1. Subjects of personal data

4.1. The company processes personal data of the following persons:

• employees of the Company, as well as entities with whom contracts of a civil law nature have been concluded;
• replacement candidates vacancies in company;
• clients of LLC Legal company "Start";
• users of the website of LLC Legal Company "Start";

4.2. In some cases, the Company may also process personal data of representatives of the above personal data subjects authorized on the basis of a power of attorney.

1. Rights of personal data subjects

5.1. The subject of personal data whose data is processed by the Company has the right to:

5.1.1. Receive the following information from the Company within the terms provided by the Law:

• confirmation of the fact of personal data processing by Start Legal Company LLC;
• O legal grounds and the purposes of processing personal data;
• on the methods used by the Company to process personal data;
• the name and location of the Company;
• about persons who have access to personal data or to whom personal data may be disclosed on the basis of an agreement with Start Law Company LLC or on the basis of federal law;
• a list of processed personal data relating to the citizen from whom the request was received and the source of their receipt, unless a different procedure for providing such data is provided by federal law;
• on the terms of processing personal data, including the terms of their storage;
• on the procedure for the exercise by a citizen of the rights provided for by the Federal Law "On Personal Data" No. 152-FZ;
• name and address of the person who processes personal data on behalf of the Company;
• other information provided for by the Federal Law "On Personal Data" No. 152-FZ or other federal laws.

5.1.2. Require clarification of their personal data, their blocking or destruction if personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.

5.1.3. Withdraw your consent to the processing of personal data.

5.1.4. Demand the elimination of illegal actions of the Company in relation to his personal data.

5.1.5. Complain about the actions or omissions of the Company in Federal Service on supervision in the field of communications, information technology and mass communications or in court if a citizen believes that Start Law Company LLC is processing his personal data in violation of the requirements of Federal Law No. 152-FZ "On Personal Data" or otherwise violates his rights and freedoms.

5.1.6. To protect their rights and legitimate interests, including compensation for losses and / or compensation for moral damage in court.

1. Company Responsibilities

6.1. In accordance with the requirements of Federal Law No. 152-FZ “On Personal Data”, the Company is obliged to:

• Provide the subject of personal data, at his request, with information regarding the processing of his personal data, or on legal grounds provide a reasoned refusal containing a reference to the provisions of the Federal Law.
• At the request of the subject of personal data, clarify the processed personal data, block or delete if the personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.
• Maintain a Register of Personal Data Subjects’ Applications, which should record the requests of personal data subjects for obtaining personal data, as well as the facts of providing personal data on these requests.
• Notify the subject of personal data about the processing of personal data in the event that personal data was not received from the subject of personal data.

The following cases are an exception:

The subject of personal data is notified of the processing of his personal data by the relevant operator;

Personal data is obtained by the Company on the basis of federal law or in connection with the execution of an agreement to which the subject is a party or beneficiary or guarantor.

Personal data obtained from a public source;

Providing the subject of personal data with the information contained in the Notice on the processing of personal data violates the rights and legitimate interests of third parties.

6.2. If the purpose of processing personal data is achieved, the Company is obliged to immediately stop processing personal data and destroy the relevant personal data within a period not exceeding thirty days from the date of achieving the purpose of processing personal data, unless otherwise provided by the agreement, the party to which, the beneficiary or the guarantor of which is the subject personal data, another agreement between the Company and the subject of personal data, or if the Company is not entitled to process personal data without the consent of the subject of personal data on the grounds provided for by No. 152-FZ "On Personal Data" or other federal laws.

6.3. In the event that the subject of personal data withdraws consent to the processing of his personal data, the Company is obliged to stop processing personal data and destroy personal data within a period not exceeding thirty days from the date of receipt of the said withdrawal, unless otherwise provided by an agreement between the Company and the subject of personal data. The Company is obliged to notify the subject of personal data about the destruction of personal data.

6.4. In the event of a request from the subject to stop processing personal data in order to promote goods, works, services on the market, the Company is obliged to immediately stop processing personal data.

6.5. The company is obliged to process personal data only with the consent of writing the subject of personal data, in cases provided for by the Federal Law.

6.7. The Company is obliged to explain to the subject of personal data the legal consequences of the refusal to provide his personal data, if the provision of personal data is mandatory in accordance with the Federal Law.

6.8. Notify the personal data subject or his representative of all changes regarding the relevant personal data subject.

1. Information about the implemented measures for the protection of personal data

7.1. When processing personal data, the Company takes the necessary legal, organizational and technical measures to protect personal data from unauthorized or accidental access to them, destruction, modification, blocking, copying, provision, distribution of personal data, as well as from other illegal actions in relation to personal data.

7.2. Ensuring the security of personal data is achieved, in particular:

• determination of threats to the security of personal data during their processing in information systems ah personal data;
• application of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems necessary to meet the requirements for the protection of personal data, the implementation of which ensures the levels of personal data protection established by the Government of the Russian Federation;
• the use of information security tools that have passed the conformity assessment procedure in the prescribed manner;
• evaluating the effectiveness of the measures taken to ensure the security of personal data prior to the commissioning of the personal data information system;
• taking into account machine carriers of personal data;
• detecting facts of unauthorized access to personal data and taking measures;
• recovery of personal data modified or destroyed due to unauthorized access to them;
• establishing rules for access to personal data processed in the personal data information system, as well as ensuring the registration and accounting of all actions performed with personal data in the personal data information system;
• control over the measures taken to ensure the security of personal data and the level of security of personal data information systems.
• assessment of the harm that may be caused to the subjects of personal data in case of violation of the legislation of the Russian Federation in the field of personal data, the ratio said harm and measures taken aimed at ensuring the implementation of the legislation of the Russian Federation in the field of personal data.

Liquidation is often considered when the company's activities become inappropriate and expenses begin to exceed income. Alternative liquidation allows you to get out of this situation with minimal losses. The official path is not easy. It requires both effort and a lot of time. In addition, the tax authorities may appoint an audit, and if any shortcomings are found, the founders will face penalties. That's why entrepreneurs are looking for other ways

What is the best way to close a business?

Consider how an alternative can be carried out. In this case, there will definitely not be a tax audit, the whole process will take much less time and will cost much less. As a result, the enterprise will continue to function, but completely different people will be at the helm, or it will cease to exist. Thus, the founders with a clear conscience "will retire."

The procedure can be implemented different ways. One of them involves the replacement of all the main persons of the company, and in other cases there is a reorganization in the form of the accession of one organization to another or a merger when another legal entity arises.

However, do not think that everything is as simple as it seems at first glance. The tax authorities are showing increased interest in such companies. Therefore, if, for example, the activity continues, then the company may soon expect a tax audit, which will be carried out with great care. The risk of this event can be somewhat reduced if the affiliated organization is located in another region.

So, there are 2 ways how alternative liquidation is carried out. They differ mainly in that the change in the composition of the management of the company will continue its activities. At the same time, upon reorganization, it ceases to exist, and another organization becomes the successor.

Reorganization

The necessary steps for the reorganization are as follows:

1. A new charter is being formed.
2. The founders and management are being replaced.
3. All changes are notified to the registering authority, which makes the appropriate entries in the Register.
4. A balance sheet is being drawn up.

In case of accession, one of the organizations continues its activities, becoming a legal successor, and the other ceases to exist. In this case, all rights are transferred to the main company.

A merger means the union of two or more companies into one, resulting in a new organization. If for taxes, as well as fees during off-budget funds the company had no debts, then you don’t have to worry about the fact that checks will “come down”. At the same time, if it is proved that the merger was carried out in order to avoid liability, then it may be recognized as illegal, and the management will have to bear either administrative or criminal liability.

Change of leadership

This method consists in the fact that the company is sold to a third party. The old owners will no longer deal with it and be responsible for current affairs. However, they can always be contacted for questions relating to previous activities.

At the same time, new members first enter the society, are appointed to leadership positions, and the old ones are leaving it, about which changes are made to the company's charter. In addition, the former founder may be removed by other participants on the basis of a court decision.

What to choose?

Alternative liquidation is a more preferable option than the official one, in the event that the company has no debts. Then you can not even doubt the chosen method and boldly get down to business. Otherwise, the owner should be wary, that is, of the obligations of his property.

Advantages and disadvantages

So, compared to the official alternative liquidation of an LLC, there are both pluses and minuses. Therefore, the choice of the optimal way of how to close a company should be carried out only on the basis of the characteristics of a particular situation.

The main advantage is that you can save a lot of time and money, as well as avoid unpleasant communication with government agencies.

But among the significant shortcomings, it stands out that the high risks remain the same for the old owners, and if violations are revealed, they can answer before the law with their property.

Thus, the quick alternative liquidation of the enterprise does not mean the complete end of the story for the entrepreneur. It can only be guaranteed by a longer and more costly official path.

Alternative liquidation of an LLC (or reorganization) is a fairly broad concept. It can be carried out in different ways, each of which has its own nuances.

The main difference between this procedure and other types of liquidation (official voluntary and bankruptcy) is the continuation of the company's activities and its preservation as legal entity.

When reorganizing, the following points are mandatory:

1. Formation of a new LLC charter.
2. Registration of all changes in the tax service and state funds.
3. Balancing.
4. Change responsible person, transfer of administrative functions to the successor.

Alternative liquidation of an LLC by merger

A merger involves the amalgamation of two or more firms into one entity. In this case, most often there is a change CEO and chief accountant.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and IS FREE!

There are two main entities in the merger:

• company - predecessor(LLC that needs to be liquidated);
• firm - legal successor(newly established LLC). The main advantage of this method is the absence of field tax audits in 90% of cases if the organization has no debts to funds, legal entities and individuals.

The legality of the reorganization of an LLC in accordance with the Civil Code of the Russian Federation is recognized if it is aimed at maintaining entrepreneurial activity and making a profit.

In the absence of this, tax or other structures may sue the liquidation to be recognized as illegal. In this case, they retain the opportunity to bring the general director, chief accountant and founders of the former LLC not only to criminal, but also to administrative liability.

You can close a company by merging by following this step-by-step instruction:

1. Meeting of founders of reorganizing firms. All participants must be present. The decision to merge is taken unanimously. Upon its adoption, it is compiled.
2. An agreement is concluded between the firms, which indicates all the details of the merger, the field of activity, the shares of the founders in the future authorized capital ().
3. New Articles of Association. The charter should reflect the following points: the scope of the company, its goals and objectives; members of the organization, the rules for their inclusion in the LLC and exit from it; authorized capital, its shares for each participant, the possibility of their transfer and sale to third parties; profit distribution; conditions for the liquidation of the organization. When registering new company it will need to be submitted to tax service as part of the general package of documents. There is no fixed form for the charter of an LLC.
4. Drawing up an act of transfer of rights. The procedure is carried out on the basis of Article 59 Civil Code RF. The act reflects all obligations (including debts) passing to the assignee. The act is sealed and signed.
5. Merger decision is drawn up in accordance with the form and sent to the Federal Tax Service at the legal address of the liquidated organization. This must happen within 3 days of the meeting.
6. Notification of creditors by means of publication in the media and in private. To do this, the editorial office of the journal "Bulletin state registration» the text is sent with a receipt of payment and a notarized form С-09-4. After that, notification letters are sent to creditors and other interested parties. Employees of the organization are notified of the liquidation of the LLC in the process of familiarizing themselves with the order.
7. Obtaining the consent of the antimonopoly authority. If the creation of a new LLC is not contrary to competition law, then there are no obstacles to reorganization. The consent of the antimonopoly authority is not required for firms whose assets on the balance sheet of the last reporting period were less than 30 million MRO T (Article 17 of the Competition Law).
8. Transferring a package to a new manager required documents . This process is carried out with the actual change of the company's management. In rare cases where a director remains in office, this liquidation step can be omitted. The act of receiving documents is drawn up unilaterally and does not have a fixed format. It reflects the list of documents, the person-compiler (founder, general director or accounting officer), stamped, dated and signed.
9. Submission of a package of documents to the tax service. It includes: an application in the form, a deed of transfer, a receipt for payment of the state fee, media publication (copy of the page), an agreement between organizations, a notarized decision on the merger of firms.

How to correctly write to work book about the dismissal of the director of the LLC during liquidation? How is this done in writing? Read more about how it happens.

The alternative liquidation of an enterprise in the form of an LLC by changing the founders and the general director as a whole is a procedure for replacing the current head and owner of the company. Read more.

Alternative liquidation of an LLC by merger

The main difference between a merger and an acquisition is the unequal value of subsidiaries.

If in the first case the successor firm is an LLC formed as a result of the procedure itself, then in the second case it is one of the original organizations, while the other is considered a subsidiary in relation to it.

In liquidation by merger, all rights of the subsidiary company are transferred to the successor company. The same can be said about debts and administrative violations, the responsibility for which lies entirely with the new LLC.

All stages of the liquidation of the organization by the method of accession coincide with those described in the previous section.

Alternative liquidation of an LLC by changing the founder

In order to change the founder or founders, there are two options:

1. New members join the LLC, old members leave it. The whole procedure is voluntary, accompanied by a change in the charter.
2. The founder is removed in court by other members of the LLC.

In the first case, you must proceed as follows:

1. Applying. The future founder submits an application for admission. It indicates his passport data, the share in the authorized capital that he would like to contribute. For an applicant who is a legal entity, it is also necessary to include the TIN, OGRN, KPP in the document.
2. Founders meeting. All members of the LLC must be present. The issue of the admission of a new founder is being considered as the agenda. When making a decision, it is necessary to build on the charter and apply the rules specified in it for becoming members of an LLC.
3. Upon the fact of the meeting, a protocol is drawn up () or issued (in the case when the founder is the only person).
4. The founder replenishes the account of the organization in the amount of the share approved at the meeting authorized capital.
5. Founders meeting. On the agenda is the drafting and adoption of a new charter of the organization. The principal difference from the old one is only the amount of capital. All other items can be saved at the request of the participants.
6. Registration of changes. For this, two forms are used: P13001 and. The first contains information about the new size of the authorized capital, the second - about the new founder.
7. Submission of documents to the Federal Tax Service. Together with the above two forms, a receipt for payment of the state duty, a decision or protocol of the founders, a charter in new edition or a copy certified by a notary.

Displacement of founders on a voluntary basis can occur in two cases:

1. This possibility is provided for by the statute.
2. All founders unanimously support this decision.

In these cases, his share in the authorized capital is alienated in favor of the LLC, he also receives a monetary compensation within the agreed time frame. The withdrawal of a participant from the limited liability company must be reported to the registration authority using the form. The sole founder of an LLC cannot withdraw from its composition.

At gross violation of the charter of the organization or legislative norms, as well as in case of intentional obstruction of profit making, a participant in an LLC may be expelled from its composition by decision of an arbitration court.

In this case, the other founders send a claim, attaching all the documents confirming their words. Testimony can also be an important argument.

Alternative liquidation of LLC by sale method

When selling, a contract is concluded between the parties. It is sent to the registration authority.

As an example, you can use the following.

During the sale, all grants and certificates are transferred to the new owner.

He also assumes full administrative responsibility, including all previous debts and obligations to creditors.

Alternative liquidation with debts

The alternative liquidation of an LLC with debts is practiced quite often, since its procedure is simpler and faster than bankruptcy. The terms and amount of payment for the LLC shares are determined by the agreement. The organization becomes the property of the legal successor upon enrollment Money.

Alternative liquidation remains the most popular way to get rid of a company. The majority still think that once the company is "sold" to Chukotka or "reorganized" there, they will not get to them. In the alternative liquidation, the liquidation of an LLC or CJSC itself does not occur, the former owners and management simply stop formal communication with it and say goodbye. Two options are used. The first is the “sale” of the company, that is, the change of the director and founders to nominees. The second is a "reorganization", in which a legal entity joins or merges with another into a third.

During the “sale”, the legal entity itself remains as it is, therefore, such a “sale” does not affect the likelihood of verification, and it will not be possible to transfer personal responsibility to front managers and founders. In accordance with the law, you are responsible for the period while the liquidated organization was yours. For example, by decision of the Arbitration Court of the Moscow Region in case A41-40552/09, the former director and owner of the company was brought to subsidiary liability in the amount of about 6 million rubles. The court did not see grounds for bringing a new one. Was there new leader and the owner of a figurehead who "bought" the troubled company, or just a naive person, we can only guess. This is not evident from the case file, but it is clear that it does not matter. The offense was committed during the period of the former leader, so he is responsible.

Since we have raised the topic of nominees, one more thing. Transferring responsibility to such a person is problematic in principle. Law enforcement agencies usually easily establish the sham of such transactions and in more complex cases. For example, according to the case file 1-434/10 of the Syktyvkar City Court of the Komi Republic, it is clear that criminal liability under Art. 199 of the Criminal Code of the Russian Federation for tax offenses, the actual head of the company was involved, who formally had never been related to it at all. The company has had a dummy founder and director since incorporation.

Now "reorganization". The sweet words of the liquidators can be misleading, because our consciousness has one property - to hear what you want to hear, and not hear what you don't want to hear. Indeed, we will hear that the company will be deleted from the Unified State Register of Legal Entities during the reorganization, but we can miss the fact that a successor will appear as a result. Therefore, I would like to draw your attention to the fact that after the reorganization, all obligations of the company, including those not performed and not identified before, are transferred to the successor. How does this affect the likelihood of verification and the ability to transfer responsibility to another person? Let's get a look.

After the decision on reorganization is made, the company is obliged to inform its tax office. In accordance with Art. 89 of the Tax Code of the Russian Federation, the tax authority in this case has the right to conduct an audit, regardless of the time and subject of the previous one. Whether he will do it or not depends on the region, the company's turnover and the stars in the sky. Thus, already at the very beginning of the liquidation of a legal entity, you can provoke what you least wanted. Suppose there was no audit and the reorganization went without consequences. So what, why on earth would the successor company be less likely to be checked than yours before the “reorganization”? Maybe more? Maybe. In the market for "reorganization" services, competition is strong and, in order to earn at low prices, the participants came up with “twos”, “threes”, and I even met in judicial practice when the liquidators collected ten companies into an assignee. That is, they will merge and join your company together with two or three of the same ones, this gives savings. The probability of checking such a successor, by definition, is higher than any predecessor separately, and if, by misfortune, a company “with history” also comes across among friends, it will pull the whole team to the bottom. Checking the successor also means checking the activities of the predecessor company. And who will be responsible for its activities? Of course, the one who managed it or owned it before the "reorganization". For example, by the verdict of the Ustinovsky District Court of Izhevsk Udmurt Republic dated 07/07/2008 in case 1-385/08, the head and founder of the company was found guilty under Art. 199 of the Criminal Code of the Russian Federation in the commission of tax crimes in 2005-2007, although by the time of the tax audit and this court decision, the company itself had already ceased its activities, “reorganized” through a merger, and was removed from the Unified State Register of Legal Entities.

The main problem with the alternative liquidation of an LLC or CJSC is that the legal entity remains. Itself or in the form of a successor is not so important, the legal consequences are the same. In the future, about 20% of them will be checked, and the former management and owners will be prosecuted for tax crimes.

Due to our specifics, not a week goes by without a person controlling the company turning to us for help in such a situation. The beginnings of these stories are similar: as a result of an alternative liquidation, the company was “sold” or “reorganized”, transferred to a remote region and abandoned, the documents were “lost”. Some time after the "liquidation" of the organization, the Federal Tax Service decides to conduct an audit in terms of the correctness of the calculation and payment of VAT and other taxes. For the current legal address companies are demanding to provide primary documentation, but whoever reads them. There is no one to pay attention to them, even if the address is still valid. Well, the absence of a primary organization in no way prevents the calculation of taxes, which will be done. In accordance with Art. 31 of the Tax Code of the Russian Federation, in case of failure to submit documents for more than two months, the tax authorities have the right to determine the amount of taxes by calculation based on the information they have about the taxpayer. Moreover, the tax deductions that you previously indicated in the submitted VAT returns, in the absence of original invoices from suppliers, cannot be provided by virtue of Art. 169, 172 of the Tax Code of the Russian Federation. Thus, the Federal Tax Service simply uses the bank payment data and makes additional charges (for VAT) for the entire amount of the company's turnover for three recent years. The legitimacy of this has been confirmed many times. judicial practice all around Russia. For example, case A43-16596 / 2005-36-614 in the Arbitration Court of the Nizhny Novgorod Region or A06-8254 / 2009 in the Arbitration Court Astrakhan region. In the second case, there is one episode that is worth paying attention to. The taxpayer did not submit some of the documents, citing a fire. Moreover, the fact of the fire was documented by a letter from the Department of State Fire Supervision with an inventory of damaged documents. Based on the materials of the case, it can be concluded that the only thing that the taxpayer could achieve in this case was the abolition of sanctions for willful failure to submit documents. The “official” fire did not save from the additional charges themselves by calculation.

After additional charges, the tax authority will send by registered mail claim for payment of tax. After 6 days, it will be considered received and in accordance with Art. 69 of the Tax Code of the Russian Federation must be executed within 8 days. In case of non-fulfillment within the specified period, the tax authority makes a decision on the collection of taxes, fees, penalties, fines at the expense of funds in current accounts and waits 2 months for full payment. Then, if the amount of additional charges exceeds 2 million rubles, he is obliged in accordance with Art. 32 of the Tax Code of the Russian Federation to send materials to law enforcement agencies authorized to investigate criminal cases of tax crimes. After talking to them, the person who controls the company, who has already forgotten about his “liquidated” company, realizes that he needs emergency help, and at that moment he turns to us.

The beginning of these stories is the same, but the ending is different - good or bad. Good. It is possible to quickly find bogus directors and founders, to whom, during the alternative liquidation of an LLC or CJSC, the company or its successor was re-registered. They initiate the procedure for the official liquidation of the enterprise and the new head - the chairman liquidation commission file an application to declare the company bankrupt. The court ruling on the completion of the bankruptcy proceedings of the company is the basis for writing off all existing debt and excluding the company from the Unified State Register of Legal Entities. The criminal case will be dismissed by lawyers.

It was good script, but such an opportunity is not always available and it is not only a matter of technical factors like the fact that bogus director impossible to find. The point is different - the Federal Tax Service often initiates bankruptcy first. If this happens to you, I wouldn't want to be in your place. Why? I think the answer is on the surface. According to current legislation the bankruptcy procedure is conducted by the arbitration manager and all powers are in his hands. If the bankruptcy of an LLC or CJSC is initiated by the Federal Tax Service, then it will present its candidacy for a manager. This will determine his loyalty and the result of the procedure.

Bad news. Lately The Federal Tax Service itself began to initiate the bankruptcy of companies and bring their management and owners to subsidiary liability.

The Federal Tax Service knows how to force the arbitration manager to look for money and property of the company with special predilection or, if it fails, shift the debt to you personally as part of subsidiary liability. Payment for his work will be directly dependent on the value of the seized property and money. The arbitration manager is a qualified expert and manager, he will analyze the financial and economic activities of the company over the past few years, look for suspicious transactions and elements of a crime. Suspicious transactions will be challenged by him in order to return the assets, and the corpus delicti will be used to bring you to criminal responsibility - as a way of pressure and subsidiary liability. The possibilities of law enforcement and tax authorities will be used to collect the necessary information and evidence. I believe many of your actions will be qualified against you. Even from a small description of our history, it can be predicted that, if necessary, law enforcement agencies will easily prove the feigned or fictitious nature of relations with figureheads, as, for example, in the case A40-61317 / 09-74-256 of the Moscow Arbitration Court. The figurehead will not take any responsibility and will immediately confirm the sham of the transaction, besides, the "liquidators" often use only passport data to save money, and unidentified persons sign the documents. In most cases, the figurehead will not matter at all - you are still responsible for your period.

I must say that many arbitration managers work in our company, and each of them has his own story. Some of them, before embarking on the true path and coming to us, managed to sin and play for the Federal Tax Service. Here is the time to recall two such cases from past life- A41-1223/08 and A41-14241/10 of the Arbitration Court of the Moscow Region and learn a lesson. They show that the head of a loss-making enterprise decided to withdraw assets - real estate, and then close the company itself. He implemented a complex scheme for the alternative liquidation of the organization - a change to denominations with a double subsequent reorganization. The arbitration manager in the interests of the Federal Tax Service challenged all the reorganization actions. According to his application, the court declared it invalid, the record of the enterprise was returned to the Unified State Register of Legal Entities, and real estate with a total area of ​​10,000 sq.m. into the competition. Thus, as long as a successor remains, your "reorganized" enterprise can be returned to you, whether you like it or not.

The arbitration manager will try to collect evidence that your illegal actions in tax evasion led to the deliberate bankruptcy of the organization, as in case A71-4633 / 2008-G15 of the Arbitration Court of the Udmurt Republic. In addition to criminal prosecution for tax evasion under article 199 of the Criminal Code of the Russian Federation, intentional bankruptcy is the basis for bringing to subsidiary liability and criminal liability under article 196 of the Criminal Code of the Russian Federation “Intentional bankruptcy”. It can be difficult to prove the deliberate bankruptcy of an LLC or CJSC, therefore, let me remind you, since June 2009 the federal law N 73-FZ, which took into account these difficulties, and introduced additional grounds for bringing to subsidiary liability, which are much easier to prove.

With one of them - non-submission of documents in set time, we have already met on the example of the case A56-27267 / 2009 of the Arbitration Court of the city of St. Petersburg and the Leningrad Region. Another example of this ground is the case A81-6369/2009 of the Arbitration Court of the Yamalo-Nenets Autonomous District. It follows from it that the Federal Tax Service initiated the bankruptcy of the company and the arbitration manager appointed on its recommendation brought the former head to subsidiary liability for 8.5 million rubles for the fact that the head did not transfer primary accounting documents. Moreover, the court ruling emphasizes that since the transfer of documents is his duty, then “the duty to prove the proper fulfillment of this duty by virtue of Article 65 of the Arbitration Procedure Code of the Russian Federation lies with the former leader” - a presumption of guilt.

The second new ground, which is easy to prove, is the failure to file an application for bankruptcy of an LLC or CJSC. Please note that if your company has become insolvent, you must file an application within a month from the date the relevant circumstances arose. Violation of this obligation entails subsidiary liability. Examples of this ground are case A41-1772/09 of the Arbitration Court of the Moscow Region, case 2-166/10 of the Ishim District Court of the Tyumen Region, case A50-20763/2009 or case A50-6110/2009 of the Arbitration Court of the Perm Territory. They are all like a blueprint. They show how the Federal Tax Service initiated the bankruptcy of the company and the arbitration manager appointed on its recommendation brought the former head and founder to subsidiary liability for violating the obligation to file an application for declaring the company bankrupt.

Failure to submit documents on time and failure to file for bankruptcy are today the most popular grounds for bringing to subsidiary liability. They are easy to prove and hard to overcome. In the alternative liquidation of the organization, you yourself create them and drive yourself into a trap ...

For lovers of alternative liquidation, I inform you that today several practices that are dangerous for former owners and management have become widespread in the Federal Tax Service. We examined one in detail - this is a check of a company or successor, some time after the alternative liquidation of an LLC or CJSC. Its goal is to charge additional taxes by calculation due to the lack of a primary company and, if they don’t pay, initiate criminal prosecution and bankruptcy proceedings for an LLC or CJSC in order to bring the former management and owners to subsidiary liability for these debts to the budget.

The second practice is no less popular - this is the abolition of the most alternative liquidation of the organization. The popular transfer of the company "to Kamchatka", with the change of director and founder, is now often canceled by the courts at the request of the host IFTS as part of the fight against "migrant firms" and the company, quite unexpectedly for the former owner, returns to him. The tax authorities simply check the company at the new address, which is often a known mass registration address, and if they don't find it there, they sue. The example of the same court clearly shows that this practice is regular: case A55-25289/2011, case A55-27163/2011 and case A55-31647/2011 of the Arbitration Court of the Samara Region.

The situation is the same with reorganization. The absence of a legal successor at the specified address and signs of any financial and economic activity of it are grounds for canceling the reorganization, as in case A56-42884 / 2010, case A56-55410 / 2010 or case A56-27840 / 2011 of the Arbitration Court of the city of St. Petersburg and Leningrad region. Ten companies participated in the first "reorganization", five each in the second and third, and all of them returned to their former owners at the initiative of the Federal Tax Service.

Pay attention once again to how many companies the liquidators merge into one. As we understand, everyone is trying to get rid of troubled companies, and among such a large number, it is likely that there will be one due to which verification of the successor and, accordingly, all predecessors, will become mandatory. Often this is a hidden reason for the desire of the IFTS to cancel the reorganization in order to simplify their lives.

Cancellation of the alternative liquidation of a legal entity by a court decision, whether it is the transfer of a company to a region or its reorganization, today for the Federal Tax Service, the practice has been worked out and is quite common, due to its simplicity and efficiency.

At the end of 2011, another surprise awaited us - the presidential law "on fly-by-night companies." This law introduced, among other things, criminal liability for the use of nominees in the creation and reorganization of companies - Art. 173.1 and Art. 173.2 of the Criminal Code of the Russian Federation. When there is enough judicial practice, we will understand how it actually works, but it can be expected that the alternative liquidation of an LLC or CJSC will become a crime in itself. In the meantime, I note that in the first half of 2012, more than 70 criminal cases were initiated and there is already a real term - 3 years for reorganization involving nominal value.

The President's 2011 "one-day firms" law criminalized the use of nominees in the creation and reorganization of companies, so the alternative liquidation of an organization became a crime in itself.