Dispel the myths that the founders do not respond with their property on debts LLC

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

Question: what to do to Basil with debts and LLC?

Is it possible for him to bankrupt an LLC with a loss of only 10 thousand of the share capital, and that he had nothing for it? Does the founder of LLC really insure all its risks with the value of the authorized capital?

Let's figure it out. A limited liability company is the most popular organizational and legal form in Russia. When making a choice between an IP and an LLC, aspiring businessmen consider the limitation of public liability to the size of the share capital as the main argument in favor of an LLC. The Civil Code confirms that the founders are not liable for the debts of the legal entity. The SP is responsible for all its property.

Is it really? Consider this question with the concepts of “subsidiary responsibility”, “beneficiary owner”, “person controlling the debtor”. You do not know how these definitions are related to limited liability LLC? The most direct.

I tell briefly:

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

And now more.

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

And here, in case of a shortage of capital LLC to cover its debts, Article 3 of the Law dated February 8, 1998 No. 14- can enter into force: “In the event of insolvency (bankruptcy) of a company due to the fault of its participants ... assigned subsidiary responsibility for its obligations. "

Yes, of course, creditors must prove that it was the actions of the participants or other controlling persons that led to the bankruptcy of the company and the presence of outstanding debts. And prove! Those interested can search the network for a review of arbitration judicial practice in cases of bringing subsidiary liability of the founders (participants) of an LLC to subsidiary liability. Such claims have been actively considered in the courts since 2009, and the founders are really paying with their property for the obligations of the company they have created. So this is unlimited "limited" liability.

“Allow me,” you say, “but why are we only talking about the responsibility of the participants of an LLC?” And if the company was headed by a third-party director. To him and all the questions. "

Well, firstly, according to the statistics of our service for the preparation of documents for registration of LLC and IP , only in 19% of cases the director becomes an outside employee not from the founders (6,775 of 35,462 sets of documents). And secondly, just in order not to shift all responsibility for bankruptcy to the head, often nominal, the Law No. 127 “On Insolvency” introduced the concept of “the person controlling the debtor”.

These persons are understood to include, among others, the LLC participants, who have instructed the director to act in a certain way. And not only acting participants, but also those who were part of the society no more than two years ago. The director, who also bears his share of responsibility, can get rid of her if he proves that when bringing the company to bankruptcy, he acted on the direct instructions of the founders.

Moreover, there is a presumption of guilt in relation to the persons controlling the debtor (read - participants of the LLC). This means that unless it is proven otherwise, it is believed that society has become bankrupt due to their actions or inaction, if:

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

Is it possible to avoid the subsidiary liability of the participants, if not to declare bankruptcy, and quickly sell off all that remains of the property and liquidate the LLC? It is possible, of course, but I do not advise that, apart from a showdown with creditors, I also do not fall under criminal liability under Article 195 of the Criminal Code of the Russian Federation.

Unfortunately, fortunately for creditors, an LLC is not so easy to close. This IP can be removed from the register in just five days and with debts. His creditors, too, of course, will not leave alone, but you can close an IP with debts outside the bankruptcy procedure. By the way, in some cases it is even profitable for an entrepreneur to declare himself bankrupt, but that’s another story.

As for the LLC, then in the process of liquidation it turns out that his property is not enough to satisfy the claims of creditors, the liquidation commission is obliged to file for bankruptcy. Therefore, it is not necessary to believe questionable ads to organize a quick liquidation of an LLC with debts without a bankruptcy procedure.

To protect the interests of creditors in the event of the withdrawal of assets (this is when all the property of a company is sold quickly and inexpensively, often to its own people), the bankruptcy law introduced a chapter on challenging debtor’s transactions. These rules allow you to challenge transactions made for the purpose of withdrawing assets, and return the sold property or its actual value to the bankruptcy estate. Moreover, transactions made not only on the eve of filing for bankruptcy, but in the previous three years.

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

Let us give a couple of illustrative examples of the involvement of the participants in an LLC’s liability and the persons controlling the debtor:

1. TD Vega LLC, having its own outstanding loan in the amount of 93 million rubles, by decision of the general meeting of participants, becomes a guarantor for the loan for Art Vision Group LLC. 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 expediency to sign the guarantee agreement, and as a result of the actions of the manager and participants of TD Vega LLC, he was brought to bankruptcy. The court pleaded guilty to the head and two participants of the company and brought them to subsidiary responsibility: 42.6 million rubles each. (Determination of the Moscow Arbitration Court in case No. A40-82872 / 10-70-400 "B").
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2. The participants of Duslyk LLC in the process of reorganization removed all assets to another company created by them. At the same time, the company itself had tax arrears, and the tax inspectorate applied for the recognition of Duslyk LLC as insolvent. In the framework of bringing to subsidiary liability, the court ordered the participants of the company to pay the tax arrears in the amount of 675 thousand rubles. (Decision of the Arbitration Court of the Republic of Bashkortostan in case number A07-7955 / 2009).

In general, it is necessary to conduct business cautiously. And if something went wrong, and this happens more often than if something went off with a bang, then 10 thousand rubles of the authorized capital can be avoided. Thanks for attention.

And yes, I almost forgot, Vasily from the example above really needs to strain and return at least money to the staff. Or be ready 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 LLC in 2016

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