All these years I have heard from clients about various “alternative” methods of liquidation and I am already tired of answering questions about whether it is possible to abandon an unnecessary company, counting on the fact that the tax office itself will close it on the basis of Art. 21.1. Federal Law of 08.08.2001 N 129.

Conditional disqualification can be applied to an unscrupulous manager, even if the record of the liquidation of the company was made before the known changes to the Federal Law “On state registration legal entities and individual entrepreneurs.

Amendments to this law establish a temporary 3-year ban on the creation of new legal entities and on participation in the management of existing legal entities for citizens who have previously shown bad faith.

That is, these are those directors whose companies at the time of exclusion of the organization from the Unified State Register of Legal Entities as inactive had tax arrears on their personal accounts. Or this debt was recognized by the tax authorities as uncollectible due to the presence of signs of an inactive legal entity.

Let's take this case for example. A citizen who, in accordance with data of the Unified State Register of Legal Entities is the happy owner of shares of various sizes in 482 companies and the head of 543 organizations, was denied liquidation in all lower courts. Then he appealed to the Constitutional Court of the Russian Federation with a complaint that the refusals to register actions with his firms were made illegally, since the requirements of paragraph “F” of the mentioned article apply to relations that arose from January 1, 2016, and do not have retroactive effect. The exclusion of problematic legal entities in which he was a director occurred before the entry into force of the norm.

But the Constitutional Court of the Russian Federation pointed out that the challenged norm does not violate the rights and freedoms of citizens, and the courts used it correctly. Since the temporary ban on registration actions is designed to ensure the relevance of information in the Unified State Register of Legal Entities and the protection of the rights of third parties and is in accordance with the law and the Constitution. In the opinion of the Constitutional Court, this restriction is not excessive, since it affects only unscrupulous persons and is established for a limited period.

Clause "F" can be applied to relations that existed before 01/01/2016. This ensures equal protection of the rights and legitimate interests participants of civil circulation from unfair manifestations that took place both before and after the specified date. Therefore, the Constitutional Court of the Russian Federation, by its ruling of March 13, 2018 No. 580-O, refused to consider the complaint of a citizen who challenged the constitutionality of subparagraph “F” of paragraph 1 of Article 23 of the Federal Law of August 08, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs ".

We will not tire of repeating that it is simply uncivilized to “throw away” a legal entity. And to hope that debts on them (especially tax debts) “will be forgiven by themselves” is not at all logical.

In addition to disqualification for abandoned companies, tax arrears and other debts of a legal entity can be recovered directly from the manager individual since June 28, 2017- from the moment when amendments to the legislation came into force, which made it possible to collect debts from controlling persons even after liquidation, bankruptcy and exclusion of a legal entity from the Unified State Register of Legal Entities.

There are clients who have heard such a scheme from “consultants”: first change the director and founder to “Uncle Vasya”, to an “offshore” or a citizen from not very far abroad, and then also leave their company in anticipation of liquidation.

So I declare with bewilderment - do you really think that the responsibility for the activities that you carried out will be borne by a person who did not conduct financial and economic activities, did not make decisions and did not sign documents that led to the formation of debts?

Usually people realize that there is nothing legal in such a “scheme”, and leaving the company, they will be afraid for another three years that creditors can find and collect debts from them. And the court will interpret the actions to change to “third parties” as aggravating circumstances.

There is no such thing as alternative liquidation in the law, the company either closes or continues to work. In practice, LLCs make structural changes, undergo reorganization and other legal procedures, which ultimately relieve the owners of liability.

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Formally, alternative liquidation is carried out by legal methods, but the purity of these schemes depends on the initial data and the skill of the lawyer who deals with it.

What it is

The expression "alternative liquidation" means such a set of legal action, which should ultimately lead to the release of owners from any obligations.

Alternative liquidation is, in fact, one of the options for gray schemes, well known to tax authorities and law enforcement agencies.

From a legal point of view, formally, each step is carried out legally, but every year amendments are adopted to narrow the scope.

There are two common alternative liquidation schemes:

• reorganization by merger or acquisition;
• sale of the company to third parties.

A small preface, which is necessary for understanding the topic. It is widely believed that with the exclusion of an LLC from the register of legal entities, all its obligations cease to exist.

In the event that all the stages of liquidation have been completed, the creditors have been notified, the verification has been passed and the taxes have been paid, the exclusion from the register is irreversible.

However, there is such a procedure as invalidating the liquidation if the above conditions are not met. In this case, the plaintiff seeks a court ruling, the organization "rises from the ashes", and its owners, managers and liquidators become defendants in the criminal case.

The first alternative liquidation scheme is based on the statutory possibility to combine several firms into one.

This action is called a merger or acquisition. In the first case, two or more LLCs merge to form a new legal entity. In the second case, the troubled firm joins the recipient firm and also formally ceases to exist.

In both cases, the liquidated LLC has a legal successor who must be liable for its obligations, but he, of course, does not intend to do this.

The creditor, trying to collect debts, discovers that there is no company with such a TIN and OGRN, and the search for a successor and bringing him to justice is difficult because he is located in another region.

The sale of an LLC to a third party is the second most popular alternative liquidation scheme. At the same time, assets and liabilities are preserved, but the owners, director and Chief Accountant. In 98% of cases, the legal address also changes, and the company “moves” to the other end of the country.

The point is that it becomes extremely difficult for creditors to find such a company, the search is dragged out. During this time, the LLC can be sold again, and again move to a new location.

While creditors are chasing the debtor, the statute of limitations expires and after a while the already clean company is liquidated in the usual way.

What should be the conditions

Alternative liquidation is a very obvious and rather dangerous gray scheme, which, if applied incorrectly, can bring problems to the former owners that they did not even suspect.

Every year the process of getting rid of the company becomes more difficult. The main element of the alternative liquidation is a “game of hide and seek”, that is, the transfer of an LLC from region to region.

In mid-2020, an amendment was introduced into the law, which effectively prohibits accession and merger, accompanied by a transfer from one region to another.

In accordance with it, the so-called fictitious migration is suppressed by the tax inspectorate, in which the LLC is registered, after a simple check, it is simply denied registration. With the introduction of this amendment, this type of liquidation loses all its meaning.

Every year, the responsibility for participating in tax evasion schemes becomes tougher. As of April 2020, the following persons can be held criminally liable:

• owners of so-called "rubber apartments" or mass registration addresses;
• owners of residential apartments providing their addresses for fictitious registration;
• lawyers, notaries, legal representatives and other liquidators who actually carry out such mergers and acquisitions.

To avoid serious trouble, you need to exclude all possible risks. They are unavoidable, since one has to rely on the liquidators, who may be negligent in their duties.

For LLC owners, alternative liquidation is a task with many unknowns, as they often do not have the opportunity to check the reliability of their future partners. Most often, the old and new owners do not get to know each other at all.

The owner of a company who wishes to resort to the alternative liquidation procedure should be guided by the following principles:

• the firm to which the accession is carried out is not under development by the Federal Tax Service;
• the partner company exists for at least 5 years and conducts real activities;
• the address at which the LLC is registered is not a mass address and does not apply to residential premises;
• no more than 3 firms participate in the merger;
• future owners are real people, not nominal values.

Obviously, it is not possible in principle to check all these points, so you have to rely on a hired liquidator, which is very dangerous.

Step-by-step instructions for the alternative liquidation of an LLC

The alternative liquidation procedure is resorted to only in cases where there are serious problems. The reasons are arrears in taxes and fees, which the LLC does not intend to pay, or debts to counterparties.

Owners like to get rid of their firms in the event that there is a possibility of an on-site inspection and large additional charges based on its results.

It is quite difficult to carry out alternative liquidation on your own, but there are relatively legal ways. Imagine a situation where there is a real company that is ready to take over a troubled LLC.

The reason may be the reputation, assets or clients that the problem company has and is very necessary for the recipient company, to such an extent that it is ready, as a successor, to take on obligations to creditors.

In this case, the accession procedure regulated by law is carried out:

1. Both firms convene a general meeting of owners and make a decision to join or merge;
2. A notice of accession and a package of documents are submitted to the tax office, including a new charter and other documents provided for by law;
3. Counterparties are notified of the abolition of the former LLC and the appearance of its successor.

Selling a company is even easier. There are two options for changing owners: direct sale with the participation of a notary and the introduction of a new person into the founders. The second option is used more often, as it is simpler and cheaper.

The procedure is as follows:

• at the general meeting of owners, a decision is made to introduce a new founder and increase the authorized capital. The tax authority is notified of the changes made;
• all former founders leave the LLC owners, alienating their shares in favor of the Company;
• the alienated shares are distributed in favor of the remaining founder (who is also the actual buyer). The tax authority is notified;
• automatically, on the grounds provided for by the Labor Code of the Russian Federation (changing the owner), contracts with the current general director and chief accountant are terminated. New responsible persons are appointed, most often there is a change of legal address.

In the event of a change of ownership, the record of the LLC in the Unified State Register of Legal Entities is preserved, as are all its assets and liabilities. From the moment of transfer of their shares in favor of the Company, the former owners cease to bear responsibility for the future fate of the company.

However, if any violations committed in the period before the sale are discovered, they will be forced to be fully responsible for the consequences of these errors.

If the firm is "clean" and has no debt, then the alternative liquidation in the form of a sale is a simple and quick way to get rid of the LLC.

This procedure lasts no more than 2 weeks and does not entail any checks if buyers and sellers operate openly and legally.

Often, the buyers are management companies, consulting agencies and brokerage houses that specialize in liquidation services.

What documents are needed

To notify the tax authorities and notarize transactions, the same set of documents is required, including:

• articles of association or memorandum of association;
• extract from the Unified State Register of Legal Entities no more than a month old;
• TIN, OGRN, information from Rosstat, notices of registration with the Pension Fund of the Russian Federation, FSS, licenses and other permits;
• contract for settlement and cash services;
• orders for the appointment of a director and chief accountant;
• certificate of ownership or lease agreement confirming the right to place at the legal address.

If the LLC is being sold, the written consent of the spouses of all owners will be required. Decisions general meeting owners, which are compiled at each stage and confirm the legitimacy of the changes.

With debts

Obviously, none of the above methods, if applied legally, eliminates the need to repay debts. All illegal ways, including transfers of firms to par or reorganization with "migration" to another region can be challenged.

Let us consider only the situation when the LLC has debts to the budget or is waiting for the inevitable check, as a result of which the arrears will be accrued.

The actions of the tax authorities will be as follows:

1. The tax office appoints an on-site audit of the company and notifies the new management as successors.
2. There is most likely no manual at the new address, so documentary requirements are ignored.
3. The tax office waits for 2 months, does not receive any answers and legally charges taxes according to the numbers that it sees in the bank statement. Naturally, all possible VAT deductions, as well as income tax expenses are ignored, because supporting primary documents are not provided.
4. The new address (to which no one is still answering) is sent a demand for payment of taxes, which, of course, is ignored.
5. If the amount of the arrears falls under the definition of the Criminal Code "especially large", and in 2020 it amounts to 2 million rubles for organizations, then the information is submitted to the Investigative Committee.
6. The Investigative Committee of the Russian Federation starts a criminal case, and the tax office begins the procedure for forced liquidation, files a lawsuit to declare the LLC bankrupt, and appoints its own arbitration manager.
7. The new manager is not at all interested in preserving the company's assets or its survival, his task is to find possible ways to repay debts, so his actions complicate the position of the owners.

The position of the former owners and directors is not enviable: they are fully responsible for the arrears revealed during the period they were “at the helm”, but, most likely, they still do not even know what is happening with the company sold a year ago.

Only after they receive a notification about the restoration of the entry in the Unified State Register of Legal Entities or a summons for interrogation by the investigating authority, the owners realize that they have amassed serious problems.

At this stage, it is practically impossible to stop the process, and the subsidiary liability provided for by law is unlikely to be avoided.

Similar actions with minor differences may be taken by other creditors. In any case, with such a development of events, the new owners will not bear any responsibility if the old founders do not sue them for fraud in which they themselves participated.

In any case, significant financial losses, and sometimes real prison terms, threaten the old owners.

The only way out is if the old owners somehow find out about the check or the lawsuit and manage to start a voluntary bankruptcy procedure before the forced one, then you can at least avoid criminal prosecution. Hence the conclusion that the only possible legal way to close an LLC with debts is bankruptcy.

Closing a current account

Closing an account is a routine procedure that can be carried out both during the life of the company and at the time of its liquidation. If the LLC has several accounts, then closing one of them will not attract any attention.

Liquidation of a company- a procedure that is aimed at terminating the work of a legal entity. The main difference from reorganization is the fact that here the rights and obligations of the organization cannot be transferred to other entities. Alternative liquidation of an LLC- a more "flexible" way of closing, carried out in several ways:

• Through the sale.
• By reorganization through a merger of companies.
• through a change in leadership.

The alternative liquidation of a company is good for its simplicity of organization and absolute legality. What are the features of each type of such company closure? What are the possible risks? What to consider?

Alternative liquidation of LLC: sale

This option is typical for situations where it is required to liquidate a company in a short period of time and avoid an on-site tax audit. The advantage of the method is high speed problem solving. On average, the liquidation through sale process takes no more than 14 days. The total costs in case of attracting specialists are at the level of 8-9 thousand rubles.

The algorithm looks like this:

• Old and new members sign an agreement.
• The executed document of sale and purchase is certified by a notary.
• An application is sent to the registration authorities with a request to make an appropriate adjustment to the Unified State Register of Legal Entities.

The main features of the alternative liquidation of an LLC by sale:

• There is no need for an on-site inspection by the Federal Tax Service.
• There are no liquidation commissions.
• There are no publications in the media.
• There is no need to meet the needs of creditors.

The advantage of such liquidation is that the company continues to operate. It remains in the unified state register, and loan obligations still remain in force (as well as debts on contributions or tax payments). That is why, in the event of a sale of an organization, creditors have the right to make claims against the former management.

Liquidation of a company by merger

Another way is the reorganization of the enterprise, as a result of which the rights and obligations are transferred to another company. In this case, the liquidated structure ceases to exist. The entire process of closing an LLC (unlike the previous method) takes longer - up to 90 days. This is due to the need to submit a notification of the start of the process to the registration structures. The following must also be done:

• Twice published information about the start of the reorganization in the media.
• An act was drawn up on the transfer of papers to the new head.
• Changes have been made to the unified state register.

After the completion of the alternative liquidation, the company "falls out" from the list of the Unified State Register of Legal Entities.

Alternative liquidation by change of leadership

In this case, the members of the LLC gather and appoint a new director. The newly elected manager takes on all the risks associated with the company's activities. After the appointment, he submits to the Federal Tax Service applications for appointment, as well as the minutes of the meeting (there must be signatures of all LLCs). In addition, after the change of the head, all documentation on cooperation with banks is reissued. Now the process of alternative closure of the LLC is considered completed.

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, subsidiary liability in the amount of about 6 million rubles was brought former director and owner of the company. The court did not see grounds for bringing a new one. Whether the new leader and owner was 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 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 report this to its tax office within three days. 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 July 7, 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 former leadership 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. The current legal address of the company is required to provide primary documentation, but who would only read 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 of the 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 the 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, one can predict that, if necessary, law enforcement the feigned or fictitious nature of relations with figureheads will be easily proved, 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 fixed 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 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 the 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.

In the modern world, circumstances often arise that require the immediate liquidation of an enterprise. It is often necessary to remove an enterprise from the register as soon as possible. Several methods are presented that differ in the duration of implementation and have a number of individual features.

When is it necessary to liquidate an LLC?

The application of the alternative liquidation of a limited liability company on paper looks quite simple. However, when using this procedure in practice, a wide range of difficulties appear, which are especially terrible for people who are not legally savvy. Numerous visits to various authorities, checks and execution of extracts require a lot of personal time of the person concerned. Not everyone is ready to spend personal forces and means.

Tax payments and fees involve large financial costs, as well as the payment of existing employees of the organization. Alternative techniques contribute to the relief of undesirable consequences. But, if the leadership of the organization turned a blind eye to all sorts of violations, then this will cause problems. As a rule, they are related to tax activities and remaining debts.

If the company has not stained its image with all sorts of violations, then it is permissible to use any of the existing methods.

In a bad case, situations arise that imply the following penalties:

• Criminal liability. When using nominees during a formal change of leadership personnel, criminal penalties are provided for by law. The probability of imposing punishment in our state is close to zero. Suspicions arise if the purpose of the transaction is only liquidation;
• Return of the company former owner. If no real work is being done, and the organization is formed by merging others. The refund is based on the results of an audit by the tax authorities. The latter carry out checks at the legal address. If there are simply no signs of any activity, then the case is immediately sent to the judicial authorities. Bottom line - wasted cash and re-attempt to liquidate;
• Confirmation of the intentional bankruptcy of a limited liability company. The bottom line is that a company created as a result of reorganization is recognized as incapacitated and requires liquidation. Most often, the reason is the obligations of the original enterprises that were not fulfilled in a timely manner. The practice is becoming widespread when previous managers are involved who did not deign to transfer documents that tell about the presence of debts and obligations to third-party firms.

Is alternative liquidation worth it?

Compared to a sale, merger and takeover, alternative liquidation has a number of advantages, which are reflected in lower labor costs and benefits. Therefore, its use is fully justified in the modern world. In order to avoid problems, the organization must be clean and not arouse all sorts of suspicions.

What is an alternative liquidation of an LLC?

Alternative liquidation of a legal entity is an event that formally leads to the suspension of the organization's activities. Reduces the likelihood of strict audits being ordered by the tax authorities. The risk of detection of violations of existing legislation is excluded.

In other words, despite the lack of results that official liquidation brings, that is, voluntary liquidation or bankruptcy, the alternative one is much faster and cheaper than nominal analogues.

In the latter, not only financial expenses are reduced to a minimum, but also contacts with representatives of the law. This is a significant advantage for those leaders who at one time made mistakes and violated current legislature by defrauding the tax authorities or third-party creditors. A growing trend is that the use of alternative methods occurs in cases of debt.

But there are many nuances that require certain knowledge. Alternative liquidation is simple only in words, but not in deeds.

Change of founders and CEO of LLC

The main essence is the transfer of legal rights to a third party. After that, the enterprise or firm continues to exist, having formally received a new leader in the form of CEO. The advantage is that the past owners are relieved of responsibility for the activities of the organization at the present time and it is fully borne by the person holding the leadership position at the current moment.

But there are also disadvantages to this method. It is obvious that any problems regarding previous performance will be directed to the previous leaders. This means that it is completely impossible to avoid liability. Therefore, it is impractical to sell a limited liability company in most cases.

Main advantages:

• Minimum terms, up to twenty-five business days;
• Low price.

Flaws:

• Large notary fees formalization transactions;
• Information about the previous activities of the organization is stored in the Unified State Register of Legal Entities. This means that anyone is able to obtain this information and hold the former management accountable;
• A large package of documents is required for certification by a notary;
• High probability of imposing subsidiary liability on the previous owners of the organization.

This method is justified when it is required to remove responsibility in the shortest possible time and minimize the significance of the previous administrative and managerial personnel.

Reorganization for the purpose of liquidation

The bottom line is that the legal entity ceases to exist formally, and responsibility from the previous owners passes to new leaders. Reorganization involves two methods - merging and joining.

Liquidation by merger

This path involves the liquidation of legal entities that are being reorganized. The rights and existing duties are completely transferred to the new management of the organization. The procedure for creating a new enterprise in the state register will take no more than seven days.

To fully complete the reorganization process, a number of legislative measures should be taken. The notifications of the enterprises that issued the loan about the reorganization being prepared are of the greatest importance. In order to notify creditors, the required correspondence should be sent to them personally and published in a journal called the State Registration Bulletin more than twice.

The legal merger of organizations is narrated by a certificate of termination of the activities of reorganized legal entities. A certificate of registration in the register of a new person is also issued.

The main feature is that tax liabilities are transferred in full from the old management to the new one in accordance with the Tax Code.

Liquidation of an LLC by merger

The main difference from the previous path is that all organizations eventually terminate their activities, with the exception of one. All tax liabilities are transferred to it.

Main advantages:

• The company is suspended at the legislative level, the data is completely erased from the state register;
• The required documents are much less than when selling a company.

But like all methods, this one has several disadvantages:

• The procedure cannot be completed if one of the creditors makes a claim;
• Duration of terms. At least three months;
• High probability of assigning responsibility to persons who held senior positions in the period from registration to reorganization.
• The procedure is similar to registration, however, in this case, the volume of required documents is much less.

Is it possible to liquidate an LLC with debts?

The essence of the procedure is that it is necessary to carry out liquidation due to the fact that the organization cannot independently repay all debts to creditors, but it must be carried out. Liquidation can be done in the following ways:

• Forced. The most undesirable option, as it requires a lot of financial and other costs.
• Voluntary. Has a favorable outcome, but gradually flows into bankruptcy;
• Bankruptcy The highest percentage of getting a good result for the administration and founders.

The liquidation of a limited liability company in most cases is carried out due to the lack of the ability to repay the debt. All three methods are legally fixed and have a favorable outcome for the founders.

With the help of the above information, you can avoid the appearance of unwanted problems and protect yourself from illegal actions by creditors and tax authorities. The main pitfalls will help complete the operation with minimal losses.

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