We dispel myths that founders do not answer with their property for LLC debts




    Vasily Ivanov - a young, talented and enterprising technical specialist - decided to open his own business, as he came up with a mega-product. At the start of the business, he quit his job, registered an LLC with 10 thousand registered capital, invested a little of his money, took a small loan, hired 5 technical specialists. The work went on, but after half a year it turned out that the product has no future, the money ran out, the loan was not repaid, the employees owed 2 months in arrears for the amount of 400 thousand rubles net and to the budget in the amount of 204 thousand rubles (approximately + 51% of the amount owed to employees, because here 13% of personal income tax, 31% of PFR + MHIF and small things). In general, things are bad, it's time to close and return to work "for uncle."

    Question: what do Vasily do with debts and LLC?

    Is it possible for him to bankrupt an LLC with the loss of only 10 thousand of the authorized capital, and so that there is nothing for him? Does the founder of an LLC insure all its risks with the amount of the authorized capital?


    Let's get it right. Limited liability company is the most popular legal form in Russia. Making a choice between an individual entrepreneur and an LLC, novice businessmen consider limiting the liability of the company as the size of the authorized capital as the main argument in favor of the LLC. The Civil Code confirms that the founders are not liable for the debts of a legal entity. IP is responsible with all its property.


    Is it really? Consider this issue with the concepts of “subsidiary liability”, “beneficial owner”, “person controlling the debtor”. Not sure how these definitions relate to LLC limited liability? The most direct.


    I tell briefly:


    • subsidiary liability - this is an additional and unlimited liability of the leaders and founders of the LLC for the obligations of its organization;
    • beneficial owner (he is also the ultimate beneficiary) - a person who is the actual owner of the company, even if it is not part of the founders;
    • person controlling the debtor - a person who has, or has had, in the last two years before declaring the LLC bankrupt, an opportunity to influence its activities.

    And now in more detail.


    While the LLC is in good health, it works and is responsible for its obligations, no one has the right to encroach on the personal property of the founders. But if the business did not go or the company was originally created not with the purest intentions, then in the presence of outstanding debts to creditors, the company is obligated to declare bankruptcy.


    And here, in case of insufficient capital of the LLC to cover its debts, article 3 of the law of February 8, 1998, No. 14-ФЗ may enter into force: “In the event of insolvency (bankruptcy) of the company through the fault of its participants ... to these participants in case of insufficient property of the company assigned subsidiary responsibility for its obligations. ”


    Yes, of course, lenders must prove that it was the actions of participants or other controlling persons that led to the bankruptcy of the company and the presence of outstanding debts. And they prove it! Those interested can search the network for an overview of the arbitration court practice in cases involving the founders (participants) of LLCs to be subsidized. Such claims have been actively dealt with in courts since 2009, and the founders really pay with their property for the obligations of the company they created. This is how it turns out unlimited "limited" responsibility.


    “Excuse me,” you say, “why are we talking only about the responsibility of the participants in the LLC? And if the company was led by a third-party director. All questions to him. ”


    Well, firstly, according to the statistics of our service for preparing documents for the registration of LLCs and IEs , in only 19% of cases, a third-party employee who is not among the founders becomes a director (6775 out of 35,462 sets of documents). And secondly, just in order not to transfer all responsibility for bankruptcy to a leader, often a nominal one, Law No. 127 “On Insolvency” introduced the concept of “controlling a debtor”.


    These persons are understood, including the participants of the LLC, who gave the director instructions to act in a certain way. And not only the current participants, but also those who were part of the company no more than two years ago. The director, who also bears his share of responsibility, can be exempted from it if he proves that when he brought the company to bankruptcy, he acted on the direct instructions of the founders.


    Moreover, with respect to persons controlling the debtor (read - LLC participants), a presumption of guilt is in effect. This means that unless otherwise proven, it is believed that the company went bankrupt due to their actions or inaction, if:


    • transactions that have caused harm to creditors are made with the approval or in favor of the controlling person;
    • Mandatory accounting documents are missing or distorted.

    Can the subsidiary liability of participants be avoided if bankruptcy is not filed, but rather that all that remains of the property is sold out and the LLC is liquidated? It’s possible, of course, but I don’t advise that, in addition to squabbles with creditors, not to fall under criminal liability under Article 195 of the Criminal Code of the Russian Federation.


    Unfortunately, but for lenders, fortunately, an LLC cannot be closed so easily. This IP can be deregistered in just five days and with debts. His creditors, of course, will not be left alone, but it is possible to close private entrepreneurs with debts outside of bankruptcy proceedings. By the way, in some cases it is even beneficial for an entrepreneur to declare himself bankrupt, but this is another story.


    As for the LLC, if the liquidation process reveals that its property is not enough to satisfy the claims of the creditors, the liquidation commission is obliged to file for bankruptcy. Therefore, you should not believe in doubtful announcements to organize the quick liquidation of LLC with debts without bankruptcy proceedings.


    In order to protect the interests of creditors when withdrawing assets (this is when all the company's property is quickly and inexpensively sold, often to its own people), a bankruptcy law has introduced a chapter on contesting debtor transactions. These norms allow you to challenge transactions made with the aim of withdrawing assets and return the property sold or its actual value to the bankruptcy estate. Moreover, transactions made not only on the eve of filing a bankruptcy petition, but for the previous three years.


    The state also declares satisfaction of its interests at the expense of LLC participants. Article 49 of the Tax Code of the Russian Federation: “If the funds of the organization being liquidated ... are not enough to fulfill in full the obligation to pay taxes and fees, penalties and fines due, the remaining debt must be repaid by the founders (participants) of this organization .”


    Here are a couple of illustrative examples of bringing to the subsidiary liability of LLC participants and persons controlling the debtor:


    1. LLC TD Vega, having its own outstanding loan in the amount of 93 million rubles, by decision of the general meeting of participants becomes a guarantor of a loan for LLC Art Vision Group. The volume of obligations assumed under the guarantee agreement is 122 million rubles, while the book value of TD Vega assets is only 99 million rubles. There was no economic feasibility to sign the guarantee agreement, and as a result of the actions of the manager and participants of TD Vega LLC, it was brought into bankruptcy. The court pleaded guilty to the head and two members of the company and brought them to subsidiary liability: 42.6 million rubles each. (The determination of the Moscow Arbitration Court in case No. A40-82872 / 10-70-400 "B").

    2. Participants of Duslyk LLC during the reorganization process removed all assets to another company they created. At the same time, the company itself had tax arrears, and the Federal Tax Service Inspectorate filed a declaration declaring Duslyk LLC insolvent. In the framework of bringing to subsidiary liability, the court ordered the participants in the company to pay tax arrears in the amount of 675 thousand rubles. (Decision of the arbitration court of the Republic of Bashkortostan in case No. A07-7955 / 2009).

    In general, you must conduct business cautiously. And if something went wrong, and this happens more often than if something went “cheers!”, Then 10 thousand rubles of the authorized capital can not get off. Thanks for attention.


    And yes, I almost forgot, Vasily from the example above really needs to strain and return at least money to employees. Or be prepared for anything.


    For those who are interested in this topic and for whom it turned out to be topical, we recommend that you read the article:  Responsibility of the founder for the activities of the LLC in 2016


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    Only registered users can participate in the survey. Please come in.

    Is subsidiary liability real in your opinion?

    • 14.8% of course, real, I know about such cases personally 68
    • 8.7% no, another warning scarecrow, no one will waste time on the courts 40
    • 13.2% need to be completely a fool to wallow in debt, adequate no responsibility is terrible 61
    • 13.9% is real, only if you have billions in turnover, the rest do not care for all 64
    • 49.2% I do not have any LLC, I do not care 226

    Is subsidiary liability real in your opinion?

    • 17.1% of course, real, I know about such cases personally 12
    • 5.7% no, another warning scarecrow, no one will waste time on courts 4
    • 4.2% need to be completely a fool to wallow in debt, adequate no responsibility is terrible 3
    • 14.2% is real, only if you have billions in turnover, do not care for the rest 10
    • 58.5% I do not have any LLC, I do not care 41

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