A complete guide to subsidies for business owners and managers in 2021

Instead of a preface

Industrial capitalism owes its flourishing to the emergence of LLCs and joint-stock companies... in their modern understanding. More precisely, “limited liability” within the authorized or share capital. Until the end of the 19th century, an entrepreneur (the owner of capital in Marx’s interpretation) bore full responsibility for the obligations of the enterprise and almost went to debtor’s prison. Therefore, factories with 20-30 people were considered huge.

The need for consolidated investments in new, ever-expanding businesses and the emergence of a plurality of co-owners also required legal instruments in the form of limited risks for the entrepreneur.

Following LLC and JSC, bankruptcy legislation has also improved. By the beginning of the 20th century, rules were universally introduced to write off most debts by creditors as part of bankruptcy.

In Russia, as always, the path is special. Over the past few years, the law has stubbornly followed the path of tightening the liability of company managers and founders. Including in bankruptcy.

As of 2021, the range of tools for punishing losers is huge and cool at the same time, which will certainly lead to the extinction of entrepreneurial activity among small and middle-aged people.

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

We agree that an entrepreneur should behave reasonably. Yes, this is an activity at his own risk. But an entrepreneur cannot and should not be held responsible for the double deliberate devaluation of the ruble, for example... and even more so for the subsequent massive withdrawals of loans by banks. He cannot be held responsible for the end-to-end system of big business kickbacks.

For twenty years of condoning the almost universal use of “fly-by-night money” (including as a consequence of the end-to-end system of kickbacks), and then for a sharp change in the rules of the game - from tax rules to lending conditions.

An entrepreneur bears risks at least in that he spends part of his life, health, family well-being in every sense... and runs the risk of not earning anything at the same time, unlike his hired employees. For the delay in paying the salary for which he also bears criminal liability, and for trying to pay the salary in a difficult situation, even out of good intentions, to the detriment of tax obligations and creditors, he will be held accountable twice, or even three times... The circle is closed.

However, you are already in trouble running and/or owning a business. Let's break it all down.

Problems of debt collection from a legal entity that has ceased to exist

We often come across the opinion that the director and founder (we will call them controlling persons) cannot be liable for the debts of the LLC.

Collectors have a problem with how to recover money from a legal entity that has stopped working or has been completely excluded from the Unified State Register of Legal Entities by decision of the tax authority.

Federal legislation provides for debt forgiveness by the founder. For this you need reasons:

the company has suffered losses and is unable to repay debts;
the founder does not mind that the money goes to the development of the company.

If a decision is made to formalize debt forgiveness by the founder, taxation of the transaction must be carried out in accordance with the regulations of Article 50 of the Tax Code of Russia. The forgiven loan is not included in the company's income, but is accounted for as property received free of charge. If the founder has forgiven the organization’s debt, the postings will be Kt 91/1 Dt 60, 66, 67, 75.76, etc.

Responsibility for violation of current legislation

Subject: head of the organization Responsibility: administrative, criminal What is provided for: Code of Administrative Offenses of the Russian Federation, Criminal Code of the Russian Federation

Boundless as the ocean, Russian legislation contains a huge number of standards, rules, orders and procedures, for violation of which not only the legal entities themselves, but also their leaders are brought to administrative and, if the result of the act is more disastrous, to criminal liability.

You didn’t return or issue a cash receipt to the buyer, you didn’t notify the relevant authority about the conclusion of an employment contract with a migrant, you violated the deadline for notifying the company’s founder about an extraordinary meeting of the company’s participants - you will receive a fine, both for this company itself and for its director. It is better to familiarize yourself with specific risks in advance, depending on the field of activity, by reading the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation at your leisure. The fines can be significant. The saddest thing: disqualification of the leader and, of course, imprisonment.

As for criminal liability specifically for tax crimes (Articles 198, 199, 199.1, 199.2, 199.3, 199.4 of the Criminal Code of the Russian Federation), there are several nuances.

In 2021, the threshold for criminal prosecution for tax evasion has been significantly increased. Up to 900 thousand rubles for individuals. And up to 5 million rubles for legal entities. In the media at that time this was called the clever word “decriminalization of the act.” However, the average amount of additional charges for one on-site tax audit was more than 7 million rubles in Russia. That is, any average tax audit gave grounds for initiating a criminal case (of course, if the taxpayer did not pay the inspection’s demand).

Now a similar marketing ploy is being launched again, aimed at “further creating conditions for creating a favorable business climate in the country.” It is planned to adopt amendments establishing new thresholds for criminal liability: 2.7 million for individuals; 15 million for legal entities. At the same time, the average amount of additional charges per GNP is 22 million rubles.

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

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

Responsibility of the former CEO

The previous director may be held administratively liable within the appropriate statute of limitations. The subject of tax liability is the organization. In this case, it does not matter who acted as the general director at the time of the commission of the relevant offense. The responsibility of the former director of the company or its owner upon dismissal or sale of a share in the authorized capital does not end. For example, if a company discovers errors or inaccuracies in an income tax return that has already been submitted, it is obliged to make changes and submit clarification to the inspectorate. But what to do if the previous declaration was signed by a director who is no longer working? This is exactly the situation that specialists from the Federal Tax Service of Russia examined in their Letter No. ED-4-3/18440 dated October 15, 2013. Let us immediately make a reservation that the explanations were given to the joint stock company. However, they are also relevant for other organizational and legal forms.

What is the point of this letter? First, the tax authorities pointed out that the correct calculation of corporate income tax for the tax period (that is, the calendar year) is the responsibility of the taxpayer. To fulfill it, the organization must use information from tax and accounting registers. According to clause 1 of Article 54 of the Tax Code of the Russian Federation, taxpayer organizations calculate the tax base at the end of each tax period based on:

accounting register data;
other documented information about objects subject to taxation or related to it.

In turn, Art. 313 of the Tax Code of the Russian Federation requires that organizations determine the income tax base at the end of each tax (reporting) period based on tax accounting indicators, that is, data from primary documents grouped in accordance with the procedure provided for by the Tax Code of the Russian Federation. If an organization discovers errors in a declaration already submitted to the Federal Tax Service that led to an understatement of the amount of income tax payable to the budget, this organization is obliged to perform a number of actions:

recalculate the tax base and the amount of tax for the period in which the distortions were made;
make the necessary changes to the tax return;
submit an updated tax return to the tax authority.

All this must be done even if there is a change of director . The obligations to the budget of a given taxpayer are in no way related to who exactly heads the organization. For non-compliance (improper execution), the organization and officials will face punishment. Moreover, several types of liability may arise here: administrative, tax and criminal.

If after reading this article you still have questions or need advice, you can call or write to us. We will help you sort out any difficult situation. “THEORY OF LAW” Evgenia Bulatova 89134323913 [email protected]

Liability for culpable damage to the company

Subject: heads of the organization (individuals and members of a collegial body) Responsibility: compensation for damage What is provided for : Art. 53.1 Civil Code of the Russian Federation, Art. 44 Federal Law “On LLC”, Art. 71 Federal Law “On JSC”

It is quite logical that the executive body of the Company, be it a director, president, manager or member of the board, is obliged to act in good faith and wisely in the interests of the company it heads.

If, by violating these principles and taking advantage of his position, he causes damage to the company: for example, he enters into a transaction in violation of the interests of the owners and/or bypassing the mandatory procedure for its approval with them, which turns out to be unprofitable for the company, the damage caused can be recovered from him. And in full size.

Until 2013, the possibility of recovering losses from the management bodies of a company was something of a fantasy: the courts demanded the determination of the exact amount of losses and referred to the probabilistic nature of assumptions about their occurrence.

This situation was corrected by the Supreme Arbitration Court of the Russian Federation in its Resolution of the Plenum of July 30, 2013 No. 62. Among other things, the court indicated situations when the unreasonableness and/or bad faith of the director’s actions is considered proven. For example, if he made a transaction on conditions that were obviously unfavorable for the legal entity or with a person who was obviously unable to fulfill the obligation (“a fly-by-night company”). If, as a result of such actions, the company is brought to tax or administrative liability, the losses incurred in the amount of additional accrued amounts of taxes, penalties and fines (if we are talking about a “one-day” transaction) can be recovered from the director.

This ruling turned the limited judicial practice on cases of recovery of damages from company directors by 180 degrees. Now courts have virtually no problems determining the amount of damage. And the amounts, what amounts!

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

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

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

from the said Resolution...

clause 2 The bad faith of the director’s actions (inaction) is considered proven, in particular, when the director: 1) acted in the presence of a conflict between his personal interests (the interests of the director’s affiliates) and the interests of the legal entity, including if there was an actual interest of the director in committing a legal the person in the transaction, except in cases where information about a conflict of interest was disclosed in advance and the director’s actions were approved in the manner prescribed by law; 2) hid information about the transaction he completed from the participants of the legal entity (in particular, if information about such a transaction, in violation of the law, charter or internal documents of the legal entity, was not included in the reporting of the legal entity) or provided the participants of the legal entity with false information regarding the relevant transaction ; 3) made a transaction without the approval of the relevant bodies of the legal entity required by law or the charter; 4) after termination of his powers, withholds and avoids transferring to the legal entity documents relating to circumstances that entailed adverse consequences for the legal entity; 5) knew or should have known that his actions (inaction) at the time of their commission were not in the interests of the legal entity, for example, he made a transaction (voted for its approval) on conditions that were obviously unfavorable for the legal entity or with a person who was obviously unable to fulfill the obligation (“a fly-by-night company”, etc.)…. clause 3. The unreasonableness of the director’s actions (inaction) is considered proven, in particular, when the director: 1) made a decision without taking into account information known to him that is relevant in a given situation; 2) before making a decision, did not take actions aimed at obtaining the necessary and sufficient information for its adoption, which are usual for business practice under similar circumstances, in particular, if it is proven that, under the existing circumstances, a reasonable director would postpone making a decision until additional information is received; 3) completed a transaction without observing the internal procedures usually required or accepted in a given legal entity for carrying out similar transactions (for example, coordination with the legal department, accounting department, etc.).

The very fact of unprofitability of activities or other negative consequences, of course, is not evidence of unreasonableness and/or dishonesty of the director’s actions, since they may be a consequence of an unfavorable economic situation and other external factors. The risky nature of entrepreneurial activity has not been canceled, and therefore, it will not be possible to assign the entrepreneurial risks of the founders to the director. However, we can assume that the practice has developed.

Grounds for initiating criminal proceedings

As we already wrote above, the times when investigators opened cases only based on tax materials are a thing of the past. This was the case from 2011 to 2015. At first, in 2011, investigators were allowed to initiate criminal cases only based on materials they received from tax authorities. This procedure was introduced by then-current President D.A. Medvedev in order to protect business from unreasonable pressure from law enforcement agencies. And from October 22, 2014, investigators again gained the right to initiate criminal cases of tax crimes without the initiative of the tax authorities. From this moment on, the reason for initiating a criminal case may simply be a report on the discovery of an offense drawn up by an employee of the operational police unit. And the report can be drawn up on the basis of a denunciation of the fired employee or competitors.

Liability in bankruptcy

Subject: controlling person (no matter the founder, director or cleaner). The one who really runs the organization. Liability: subsidiary (additional), for the debts of the organization in case of insufficiency of its property. What is provided for: Ch. III.2 Federal Law “On Insolvency (Bankruptcy)”.

First of all, what does subsidiary mean? This means that the amount of liability is equal to the total amount of all creditors' claims that remain unpaid due to the insufficiency of the debtor's property.

The law imposes subsidiary liability on the persons controlling the debtor (CPL). These are individuals or legal entities who, no more than 3 years before the company experienced signs of bankruptcy, as well as after their occurrence and before the court accepted the bankruptcy petition, controlled (had the opportunity and right) the decisions made in the company, entered into transactions on its behalf, determined their conditions.

There is still an opinion among business owners that subsidiary liability is something distant and incredible. Indeed, previously it was almost impossible for creditors to prove that the responsible persons were guilty of bringing the company to bankruptcy.

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

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

1. Significant harm has been caused to the property rights of creditors as a result of this person making or in his favor, or his approval of one or more transactions

2. Accounting and (or) reporting documents are missing or distorted, as a result of which it is significantly difficult to carry out the procedures used in a bankruptcy case, including the formation and sale of the bankruptcy estate. When transferring cases to the arbitration manager, make sure that the primary accounting documents are filed in thematic folders and an inventory of each (!) document is drawn up. It wouldn’t hurt to take a photo of each (!) document. Before transferring cases, do a documentary audit. And not for 50 thousand rubles, when the auditor draws up a conclusion according to a pre-written template, namely a documentary one. Request what you need from your counterparties, no matter what the cost.

3. More than half of the claims of third-priority creditors are due to the bringing of the debtor or its officials to criminal, administrative or tax liability. The most common case of the above, of course, is tax arrears. Statistically, the Federal Tax Service is the initiator of bankruptcy proceedings in every tenth case.

4. Documents, the storage of which was mandatory for legal entities, are missing or distorted. This applies to company charters, minutes of general meetings, register of participants, documents, lists of affiliated persons, auditors’ reports, etc.

5. As of the date of initiation of the bankruptcy case, the information required to be entered in accordance with the laws was not entered, or inaccurate information about the legal entity was entered into the Unified State Register of Legal Entities or FEDRESOURS.

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

making transactions with fly-by-night companies that led to the company's debt to the budget;
withdrawal of assets - alienation of property to other controlled persons without corresponding reciprocal provision;
failure by the debtor's director to fulfill the obligation to file a bankruptcy petition for the organization he heads, if the signs of insolvency were known to him (or should have been known);
failure to transfer company documents to the bankruptcy trustee.

Another interesting aspect is the use of denominations as a shield from liability. Judicial practice demonstrates that making a decision to replace the actual managers and founders of a company with nominees from among friends, employees and relatives not only does not prevent the owners of the business and real managers from being held vicariously liable, but is also indirect evidence of guilt.

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

What about the courts?

It will not be a big secret for you that the percentage of acquittals is less than 1. The courts do not show the slightest loyalty towards entrepreneurs against whom a criminal case has been initiated. This is how the practice develops: it is the accused who have to prove their innocence, and not the investigative authorities the guilt of the accused. The prosecutor's office often signs indictments without reading them. The prosecutor only reads the materials of the criminal case for the first time in court. At the same time, people get confused not only with the names of the declarations, but also with the names of the taxes themselves. But this will not affect the court's decision in any way.

In terms of evidence regarding tax offenses, investigators present their expertise with calculations that, in general, seem to coincide with the Tax Code of the Russian Federation, but in detail with a large number of errors and sometimes critical for a particular case. In practice, if the accused orders an independent examination, it is not accepted by the court.

As for conspiracy, in this part the courts do not require special evidence from investigators. Conspiracy is concerted action. With this approach, your actions will always be consistent. After all, the chief accountant takes into account expenses for tax periods (within a certain period), submits declarations (within a certain period), checks the primary documents before preparing reports (within a certain period), the director signs (within a certain period). Everything happens within the exact deadlines, which, alas, are established by law.

If we talk about intent, then any document signed by the director is intent.

Another point, no less important, is the lack of judges who specialize in considering economic crimes. This can completely negate all your attempts to justify yourself.

Say a word about personal bankruptcy

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

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

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

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

The main disadvantage of getting into personal bankruptcy proceedings is the ability of creditors to challenge transactions of debtor-individuals, including concluded marriage contracts and property donation agreements

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

And the main one concerns the requirements of creditors to bring an individual, as a controlling person, to subsidiary liability.

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

Thus, the participants and managers of a bankrupt company who are held vicariously liable will not be able to get rid of the debt hanging over them. Initiating bankruptcy proceedings either by the person himself or by any creditor will not help with this. Unfortunately, such a debt cannot be written off.

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

Affiliation with the debtor as a reason for refusing to satisfy an application for a subsidiary

Yes, according to the law, both the bankruptcy trustee, the creditor, and the debtor’s employees can submit an application. But when some participants are brought to subsidiary liability, sometimes other participants abuse their rights if there is a corporate conflict in the company.

The Arbitration Court of the Ural District, in a resolution dated February 15, 2021 in case A50-15426/2017, refused to hold former participants and directors of the bankrupt subject to subsidiary liability. The court found that all register claims consist of claims of creditors of one group.

The court decided that only independent creditors can make demands for subsidiary liability; such demands cannot be a means of pressure in corporate conflicts. Participants in the company have other means of influence, outside the bankruptcy procedure, provided for by civil law - claiming losses, challenging transactions, expulsion from the company.

The same conclusion about the inadmissibility of using claims for subsidiary liability as a “weapon” in a corporate conflict was made by the Supreme Court even earlier (Decision of the Supreme Court of the Russian Federation dated September 28, 2020 in case No. A23-6235/2015)

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

According to the law, the manager, having come to the conclusion that the company is insolvent, is obliged to apply to the arbitration court within a month to declare it bankrupt. The duty was introduced to prevent wider negative consequences for creditors, so that the company could not accept further unrealistic monetary obligations.

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

Therefore, in practice, all legal disputes bringing the head (liquidator) of the debtor to subsidiary liability are associated with establishing the date of occurrence of the obligation to independently file a bankruptcy petition.

For the manager, one month is established, and for the liquidator - 10 days for filing an application from the moment of occurrence of one of the following circumstances:

satisfying the claims of some creditors makes it impossible to satisfy others;
foreclosure on the debtor's property will significantly complicate or make impossible the debtor's business activities;
there is a debt to employees outstanding for 3 months;
the debtor has signs of insolvency and (or) insufficiency of property.

Insufficient property is an excess of the amount of monetary obligations and obligations to pay obligatory payments of the debtor over the value of the debtor’s assets;

Insolvency is the termination of the debtor’s fulfillment of part of his monetary obligations or obligations to pay obligatory payments, caused by insufficient funds. In this case, the presumption of insufficient funds applies until proven otherwise.

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

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

Financial insolvency must be understood as a condition that does not allow him to satisfy the demands of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments, which amount to at least 300,000 rubles. within 3 months from the date on which they must be executed.

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

The deadline for filing a debtor’s independent application for bankruptcy is determined in the following order:

Actually, for violating these deadlines, the manager, as well as other persons who were obliged to make the appropriate decision, will receive a “subsidiary”. Own, personal, personal. Even if he was innocent of the fact of bankruptcy.

To determine the limits of this special form of subsidiary liability, all obligations of the debtor company can be divided into two groups: those that served as the real cause of bankruptcy and those that arose after signs of bankruptcy appeared. For failure to file a self-bankruptcy application, it is possible to hold the debtor's manager accountable only for the latter. For the first group of obligations, the manager is held accountable on general grounds.

In this case, it does not matter what obligation the debtor was unable to repay: did not pay taxes, did not repay the loan, did not pay for goods (work, services) within the period established by the contract.

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

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

Trends in judicial practice and what to do about it

Recently, almost no bankruptcy case is complete without attempts to bring controlling persons to subsidiary liability.

Increasingly, such claims are being filed by the tax authorities; managers and participants are increasingly being held accountable if bankruptcy arose as a result of additional taxes, penalties and fines. Thus, an accusation of working with fly-by-night companies may entail not only additional taxes for the company, but also the risk of bringing its director and participant to subsidiary liability in the event of bankruptcy of the company.

Most often, managers and former managers of debtors, liquidators, as well as majority participants in companies are brought to justice. But judicial practice is constantly expanding the circle of persons and the grounds for bringing to subsidiary liability for the debts of bankrupts, for example, bringing in a holding company in the event of bankruptcy of the debtor - the “center of losses.”

There is a tendency to bring to subsidiary liability the children of controlling persons in whose name expensive property is registered.

Not only managers and participants were under attack, but also chief accountants, financial directors and other persons.

Moreover, if certain conditions are met, the burden of proving their innocence is placed on the defendants. To win a dispute, it is necessary not only to know the law well, but also to be well versed in the latest trends in judicial practice and to select appropriate evidence.

Therefore, if such a claim is filed against you, immediately contact bankruptcy specialists and actively provide all possible evidence. After all, lately we are talking about huge sums - tens and even hundreds of millions of rubles.

Responsibility without bankruptcy

Subject: director and controlling persons. Liability: for the debts of the organization in the absence of its property. What is provided for: Art. 61.14 Federal Law “On Insolvency (Bankruptcy)”

Now, developing the topic, let’s imagine that the head of the debtor company did not file for bankruptcy of the company he headed and seems to have to bear responsibility. But no matter how hard the creditors tried, they were unable to initiate bankruptcy proceedings. For example, the application was returned by the court due to the lack of funds to reimburse legal expenses for the bankruptcy procedure. The court has such a basis. Or, say, bankruptcy proceedings were terminated on the same grounds and there was no time to bring the director to justice.

What should creditors do in this case? Will the director escape unscathed? Now it is possible to bring the persons controlling the debtor to subsidiary liability outside the bankruptcy procedure.

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

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

If the bankruptcy petition is returned, only the tax authority can file a claim for subsidiary liability. And if the bankruptcy procedure was terminated, then any creditor.

However, that's not all. For owners and managers of legal entities forcibly excluded from the register.

From June 28, 2021, persons who have controlled such a company over the past three years may be held vicariously liable if a legal entity excluded from the register has unfulfilled obligations due to dishonest and unreasonable actions of these controlling persons.

Responsible for father

In December 2021, the Supreme Court brought to subsidiary liability the debtor’s director and his wife, the director and sole founder of another company, who, according to the Federal Tax Service, together created a tax evasion scheme and, using fictitious subcontract agreements, withdrew funds from the company.

The tax authorities demanded that their two children, who were given real estate and vehicles, be held accountable.

The Supreme Court separated the claims against the sons into separate proceedings and sent them to the court of first instance, indicating that harm to creditors can be caused not only by bringing the company to bankruptcy, but also by concealing property from collection - the property was transferred under a gratuitous transaction to the children, although in fact it remained in the family ( Determination dated December 23, 2019 in case A40-131425/2016).

The Moscow Arbitration Court, by its ruling dated October 20, 2020, for the first time in judicial practice brought to subsidiary liability the children of persons controlling the debtor.

Thus, the circle of defendants in such cases has been significantly expanded; now other relatives of the controlling persons (parents, brothers and sisters) also bear the risk of recognizing gratuitous transactions as fictitious and holding them accountable if it is proven that the property actually remained in the family.

Full property liability without bankruptcy

Subject: the guilty person controlling the company Liability: civil liability for causing damage to the state in the form of unpaid taxes What is provided for: general rules on liability, taking into account the position of the courts (Resolution of the Constitutional Court dated December 8, 2017 No. 39-P; Determination of the Supreme Court of the Russian Federation dated January 27. 2015 No. 81-KG14-19

After the adoption of Resolution of the RF Armed Forces dated January 27, 2015 No. 81-KG14-19, the tax office has another serious tool for collecting arrears, namely: recovery of damages from individuals controlling the organization in the framework of a criminal case.

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

The Supreme Court decisively changed this practice with its Determination, indicating in it that an individual brought to criminal liability for this offense may be held responsible for compensation for damage to the Russian Federation in the form of unpaid taxes by an organization, including unlawful reimbursement of VAT from the budget.

Previous references by lower courts to the provisions of Art. 45 and art. 143 of the Tax Code of the Russian Federation, which strictly establishes the range of taxpayers and the procedure for fulfilling tax obligations, as a basis for refusing to compensate for damage to the budget in this way, was declared untenable by the Supreme Court, since in the case under consideration we are not talking about the collection of taxes, but about compensation for damage caused by a crime. In December 2021, the Constitutional Court outlined several more fundamental points in this matter.

So, taking into account the positions of the courts, the scheme for collecting additional assessments for tax audits is as follows:

If the organization did not appeal the results of the audit in court or the court supported the tax inspectorate and found the organization guilty of committing a tax offense, the inspectorate may, in the event of failure to pay additional assessments by the taxpayer, resort to bankruptcy proceedings and declare the persons controlling the debtor to be held vicariously liable.

At the same time, if a tax offense contains signs of a criminal offense (Article 199, Article 199.1 of the Criminal Code of the Russian Federation), then the persons controlling the organization will be obliged to compensate for the damage caused to the budget by their actions.

The obligation to compensate for the damage caused to the budget will remain, even if the criminal case against the controlling persons (director, founder, member of the Board of Directors) was terminated on so-called non-rehabilitative grounds - due to the expiration of the statute of limitations for criminal prosecution (under Part 1 of Article 199 of the Criminal Code is only 2 years) or due to an act of amnesty.

Does appointing a nominee director reduce the founder's risks?

In the case of obvious management of the organization by the owner, and not by the director, the member of the company himself may be brought to criminal liability. For example, paragraph 2 of the letter of the Federal Tax Service of the Russian Federation dated April 17, 2017 No. SA-4-7 / [email protected] refers to a criminal case in which the owner of the enterprise was held accountable for non-payment of taxes. As part of the criminal investigation, it was established that it was on behalf of the owner that the company evaded paying taxes and submitted tax reports containing false indicators.

In the letter of the Federal Tax Service of the Russian Federation dated July 25, 2013 No. AS-4-2/13622, which contains the criteria for an organization to be included in the list for on-site inspections, there is a clause about nominal managers and founders (clause 1.2, clause 1 from the list of cases).

In addition, clause 1.4 of the letter of the Federal Tax Service of the Russian Federation dated October 8, 2015 No. GD-4-14 / [email protected] contains a case of refusal to state registration of an enterprise, the general director of which the founder appointed a nominee.

The criteria by which the tax office calculates nominee directors are given in the Federal Tax Service letter dated March 29, 2019 No. GD-4-14/ [email protected] And they are as follows:

lack of a permanent place of work;
low level of income;
low level of education;
residence in a region different from the place of registration of the legal entity;
the age of such persons, as a rule, does not exceed 25-30 years;
mass character, that is, the presence of the status of a founder (participant) or head of several legal entities (usually this is indicated in the Unified State Register of Real Estate by a record of unreliable information). This information can be found in the Federal Tax Service “Transparent Business” service.

Inspectors will consider the manager's rating in relation to each specific situation. The presence of these signs in itself does not confirm this.

How can a fictitious director be dangerous in terms of taxes? Well, for example, tax officials like to refuse to accept reports and block accounts for companies with such directors. And if the “nominee” is found in the hands of a counterparty, you may be accused of receiving an unjustified tax benefit in transactions with a shell company.

Responsibility FOR the fact of bankruptcy itself

Subject: managers and participants of the company Responsibility: administrative or criminal What is provided for: the Criminal Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation

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

Example: case of Ural Forest LLC
Due to financial difficulties in the business, the director, who is also the founder of the company, accrued and paid wages to employees, but there were no longer enough funds to withhold personal income tax from the payroll fund. From the point of view of the court, there is a selfish motive in the director’s actions: he wanted to save face in front of employees instead of reducing salary payments, but transfer personal income tax to the budget (he could also be subject to criminal liability for non-payment of salaries, but that is not the point).

Thus, based on the materials of the Federal Tax Service, a criminal case was initiated under Part 2 of Article 199.1 of the Criminal Code of the Russian Federation.

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

Who is charged under Article 199 of the Criminal Code of the Russian Federation?

There is an opinion that only the manager and chief accountant of the organization face criminal prosecution. This is wrong. Any employee of an organization can be held criminally liable on the basis of Article 33 of the Criminal Code of the Russian Federation - the organizer, instigator and accomplice are recognized as accomplices in the crime along with the perpetrator. Most often, in addition to managers and chief accountants, those accused include business owners, LLC participants, financial directors, heads of departments (departments) and other persons who participate in making decisions related to payment for certain works (services) included in expenses or decisions related to the amount of taxes paid.