Alternative liquidation of LLC: methods and risks. Apocalypse “alternative liquidation of legal entities What documents are needed for alternative liquidation

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

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

When reorganizing, the following points are mandatory:

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

Alternative liquidation of LLC by merger method

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

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When merging, two main subjects are distinguished:

legal predecessor firm(LLC to be liquidated);
firm - assignee(newly created LLC). The main advantage of this method is the absence in 90% of cases of on-site tax audits, if the organization has no debts to funds, legal entities and individuals.

The legality of the reorganization of an LLC in accordance with the Civil Code of the Russian Federation is recognized if it has as its purpose the maintenance entrepreneurial activity and making a profit.

In the absence of this, tax or other structures may file a lawsuit demanding that the liquidation be declared illegal. In this case, they still have the opportunity to bring the general director, chief accountant and founders of the former LLC not only to criminal, but also to administrative responsibility.

You can close a company using the merger method by following these step-by-step instructions:

Meeting of founders of reorganizing firms... All participants must be present. The merger is decided unanimously. Upon its adoption, it is drawn up.
An agreement is concluded between the firms, which specifies all the details of the merger, the field of activity, the shares of the founders in the future. authorized capital ().
The new charter of the LLC. The charter should reflect the following points: the scope of the society, its goals and objectives; members of the organization, the rules for their inclusion in the LLC and withdrawal from it; authorized capital, its shares for each participant, the possibility of their transfer and sale to third parties; distribution of profits; conditions for the liquidation of the organization. When registering new firm it will need to be submitted to tax office as part of a common package of documents. There is no fixed form for the charter of an LLC.
Drawing up an act of transfer of rights... The procedure is carried out on the basis of Article 59 of the Civil Code of the Russian Federation. The act reflects all obligations (including debts) that are transferred to the assignee. The act is sealed and signed.
The decision to merge LLC drawn up in the form and sent to the Federal Tax Service at the legal address of the organization being liquidated. This must happen within 3 days of the meeting.
Notification of creditors by means of publication in the media and personally. To do this, the editorial office of the journal "Vestnik state registration»A text with a payment receipt and a notarized form С-09-4 are sent. After that, creditors and others interested parties notification letters are sent. The employees of the organization are notified of the liquidation of the LLC in the process of familiarizing themselves with the order.
Obtaining the consent of the antimonopoly authority... If the creation of a new LLC does not contradict the law on competition, then there are no obstacles to reorganization. The consent of the antimonopoly authority is not required for firms whose assets, according to the balance sheet of the last reporting period, were less than 30 million MRO T (Article 17 of the Law "On Competition").
Passing a package to a new manager required documents ... This process is carried out when the actual management of the company is changed. In the rare event that a director remains in office, this phase of liquidation can be omitted. The act of acceptance of documents is drawn up in unilaterally and has no fixed format. It reflects the list of documents, the compiler (founder, CEO or accounting officer), stamp, date and signature.
Submission of a package of documents to the tax service... It includes: a statement in the form, a deed of transfer, a receipt for payment of a state fee, a media publication (copy of a page), an agreement between organizations, a notarized decision on the merger of firms.

How to correctly add an entry to work book about the dismissal of the director of an LLC upon liquidation? How is it done in writing? Read more about how it happens.

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

Alternative liquidation of an LLC by the merger method

The main difference between mergers and acquisitions is the disparity between the subsidiaries.

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

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

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

Alternative liquidation of an LLC by changing the founder

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

New members join the LLC, the old ones leave it. The whole procedure is voluntary, accompanied by a change in the charter.
The founder is shifted to judicial procedure other members of the LLC.

In the first case, you must proceed as follows:

Application submission... The prospective founder is applying for his admission. It indicates his passport data, the share in the authorized capital that he would like to contribute. For an applicant who is a legal entity, it is also necessary to include the INN, PSRN, KPP in the document.
Meeting of founders... All members of the LLC must be present. The issue of admitting a new founder is being considered as the agenda. In making a decision, it is necessary to build on the charter and apply the rules for joining an LLC specified in it.
On the fact of the meeting, a protocol is drawn up () or issued (in the case when the founder is the only person).
The founder replenishes the account of the organization in the amount of the share approved at the meeting authorized capital.
Meeting of founders... On the agenda is the drafting and adoption of a new charter of the organization. The principal difference from the old is only the size of the capital. All other items can be saved at the request of the participants.
Registration of changes... For this, two forms are used: P13001 and. The first contains information about the new size of the authorized capital, the second - about the new founder.
Submission of documents to the Federal Tax Service... Together with the two forms indicated above, a receipt for payment of the state duty, a decision or protocol of the founders, the charter in new edition or a notarized copy of it.

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

This possibility is provided for by the charter.
All founders unanimously support this decision.

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

At gross violation the charter of the organization or legislative norms, as well as in the case of deliberate obstruction of the extraction of profit, the participant of the LLC may be excluded from its composition by the decision of the arbitration court.

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

Alternative liquidation of an LLC by the sale method

When selling, an agreement is concluded between the parties. It is forwarded to the registering authority.

Take the following as an example.

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

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

Alternative liquidation with debts

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

Photo by Denis Yakovlev, Clerk.Ru

Recall that under the so-called "alternative liquidation of a legal entity" it is customary to mean a set of measures, the implementation of which ultimately makes it possible to achieve desired result- exclusion of the company from the Unified State Register of Legal Entities without any checks and consequences for the controlling persons.

It is not a secret for anyone that the legislation in the Russian Federation is changing not so rapidly, but somehow completely at lightning speed. New laws are being stamped, resonant resolutions and explanations are issued, formal and informal "instructions" are issued to various controlling and judicial instances. The “rules of the game” governing the procedures for alternative liquidation were no exception. legal entities, having undergone dramatic changes in the blink of an eye. Amendments were adopted to 127-FZ "On insolvency (bankruptcy)", amendments were made to 129-FZ "On state registration of legal entities and individual entrepreneurs", Updated Civil Code RF, as well as a number of other regulations governing the procedures and technologies for alternative liquidation of firms. Simply put, the liquidation was not at all what it was just a month ago.

However, the abundance of commercial proposals for the closure of legal entities that are replete with the Internet, as well as spam mailing, which with enviable regularity makes its way through filters to corporate mail, forced us to understand this issue more deeply. A healthy legal curiosity arose - and maybe there are still some ways and detours, gaps and loopholes in the updated legislation (as is often the case). Yes, such that it would be possible to build on their basis something like "green corridors" for the liquidation of companies without inspections. To find the answer, we analyzed commercial offers liquidation of legal entities, highly specialized forums, as well as a number of freelance sites and law firms in several regions of the Russian Federation. For half a working day, two lawyers, posing as owners and directors of commercial structures, specially corresponded, called the “liquidators”, made inquiries, collected information, sent the “client” (data from one of our organizations) to check the OGRN. The conclusions were disappointing. Commercial proposals for liquidation, to put it mildly, do not correspond to the realities of law enforcement practice. What they offer contradicts what the authors of the proposals themselves are discussing on the sidelines. Here we make a small important disclaimer - if someone sees inconsistencies in the examples below, in some regions the situation is different, please write in the comments, because the purpose of this material is not to denigrate someone or "throw a stone" at someone side, but, on the contrary - to warn against traps. After all, as you know, forewarned is forearmed.

So, here the summer flared up in June heat, and along with it the market for alternative liquidation of legal entities literally flared up with heat - “reorganizations by mergers”, “sales” of companies, “change of directors and founders to offshore” and the like. It should be noted that any procedures, measures and half-measures that allow ultimately to liquidate a legal entity without inspections are fairly popular in our country in view of objective and subjective reasons - after all, the taxpayer in the Russian Federation is always guilty by default, therefore, look for "escape routes" - liquidation without inspections is his natural right. In this regard, the scale of the “unexpectedly” outbreak of alternative liquidation procedures affected hundreds, if not thousands of legal entities. As many things hung as never before. We can say that the "apocalypse of alternative liquidation" happened.

Since June 14, 2016, on all forms 16001 "Application for state registration of a legal entity in connection with its liquidation" submitted to the Federal Tax Service Inspectorate No. 46 in Moscow, decisions have been made to suspend state registration. Formally, for a period of one month, for a thorough check of the submitted information. However, according to confirmed information, the suspensions will be followed by massive refusals to complete the initiated reorganizations. The same thing, a little earlier, happened in Kazan, which has recently become the "Hong Kong" of alternative liquidations, as well as in other regions of the Russian Federation. Thus, the procedures for the liquidation of firms were frozen practically throughout the country. Order of the Federal Tax Service dated 11.02.2016 No. ММВ-7-14 / [email protected]"On approval of the grounds, conditions and methods for holding the events specified in paragraph 4.2 of Article 9 of the Federal Law" On State Registration of Legal Entities and Individual Entrepreneurs ", the procedure for using the results of these events, the form of a written objection regarding the upcoming state registration of changes to the charter of a legal entity or the upcoming entry of information in the Unified State Register of Legal Entities, the application forms of an individual about the inaccuracy of information about him in the Unified State Register of Legal Entities "entered an active phase.

It should be recalled that around the end of 2015, the screws were “tightened” in the so-called “liquidation of firms through offshore”, when tax authorities began to issue massive refusals for attempts to change the sole proprietor. executive agency and participants of liquidated companies on foreign companies and oblige the latter to register branches on the territory of the Russian Federation, with the corresponding payment of six-figure state duties. The "liquidation of an LLC through a change of director and founders" became much more complicated, when the fiscal authorities, among other things, began to demand notarized decisions of the participants. Additionally, the “stop-lists” of mass managers and nominee shareholders were finalized and fully implemented. In a number of regions, police officers connected to this "service", who began to wonder why this or that person needs so many organizations that he is listed there as a director or participant. From 01/01/2015, it was very difficult to change the region of registration of a legal entity (migration), and from 01/01/2016, in the vast majority of regions, it became virtually impossible.

The technology of liquidation of a company through a simplified procedure for bankruptcy of the debtor being liquidated has also lost its meaning. Amendments to the basic law governing this procedure, namely, 127-FZ “On insolvency (bankruptcy), introduced norms that deprive the debtor of independently specifying the desired candidate for a“ loyal ”bankruptcy manager. Article 37 of the Federal Law-127 "on insolvency (bankruptcy)", taking into account the amendments, began to sound as follows: "... The name and address of the debtor is indicated in the application of the debtor self-regulatory organization, from among the members of which an interim manager must be approved, determined in accordance with the procedure established in accordance with paragraph 5 of this article ... notification of the application to the arbitration court with the debtor's statement. "

The rules of the game have changed - the laws have changed, they have changed law enforcement practice... However, despite this:

The Internet is brightly replete with announcements of "reorganization of an LLC by accession", "liquidation of an LLC through reorganization" and the like. Moreover, when, out of a really healthy legal curiosity, questions were asked with a request to indicate the region of successors and OGRN organizations that took place in June, not a single law company gave us a clear answer, referring to “ trade secret of this information ".
In spite of all the changes, proposals to change the region of the location of the legal address of the LLC (migration) also became no less, but rather more. And here, in response to a request for the OGRN of past firms, a “specific” cut portfolio was sent - no more than 3-5 companies that went to a new address. But we never saw the next ones. Conclusion - there will be a clean, "zero" address - there is a great chance to move to it, but you need to manage to get into the top five.
We have worked out commercial proposals for the “liquidation of an LLC through an offshore”. And the most beautiful ones - with clever words and business-like pictures. We were offered to make the first payment in rubles, the second at the exchange rate in foreign currency - apparently for greater surroundings. To the question "send the OGRN completed projects" - again silence. Apparently, the passion for prepayment took its toll here.
Several times tried to find out from legal organizations offering bankruptcy services under a simplified procedure for a liquidated debtor - how are they going to indicate the candidacy of their "loyal" bankruptcy administrator, because it is really interesting. So far, we have not received a clear answer from anyone.
It should be noted that several law firms gave us intelligible guarantees of alternative liquidation (the cost, however, even exceeded the cost of the bankruptcy procedure). However, their offers are a drop in the ocean, which is completely hammered by the aggressive marketing of unscrupulous salespeople.

Therefore - be vigilant. Good luck and success in business.

All these years I have heard from clients about different "alternative" methods of liquidation and am already tired of answering questions about whether it is possible to leave an unnecessary company, hoping that the tax authorities will close it on the basis of Art. 21.1. ФЗ dated 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 amendments to the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" come into force.

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 the directors in whose companies, at the time of the exclusion of the organization from the Unified State Register of Legal Entities, there was tax arrears on their personal accounts. Either this debt was recognized by the tax authorities as hopeless due to the presence of signs of an inactive legal entity.

Take this case for example. A citizen who, in accordance with the Unified State Register of Legal Entities, is the happy owner of a share different sizes in 482 companies and the head of 543 organizations, was refused liquidation in all lower courts. Then he turned 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 clause "F" of the above article apply to relations that arose from January 1, 2016, and have no retroactive effect. The exclusion of troubled legal entities, in which he was a director, occurred before the entry into force of the rule.

But the RF Constitutional Court indicated that the contested norm does not violate the rights and freedoms of citizens, and the courts used it correctly. Since the temporary ban on registration actions is intended to ensure the relevance of information in the Unified State Register of Legal Entities and the protection of the rights of third parties and complies 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" may apply to relations that existed before 01.01.2016. This ensures equal protection of the rights and legitimate interests of participants in civil turnover from unfair manifestations that took place both before and after the specified date. Therefore, the Constitutional Court of the Russian Federation, by ruling No. 580-О dated 03.13.2018, 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 dated 08.08.2001 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 out" 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 collected directly from the manager as an individual from 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 “offshore” or a citizen from not very far abroad, and then also leave your 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 after 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.

Alternative liquidation remains the most popular way to get rid of a company. Most still think that as soon as the company is “sold” to Chukotka or “reorganized” there, they will not get to them. In the event of an alternative liquidation, the liquidation of an LLC or CJSC does not take place, the former owners and management simply stop formal communication with it and say goodbye. There are two options. The first is the “sale” of the company, that is, the change of director and founders to dummies. The second is "reorganization", in which a legal entity joins another or merges with it in a third.

In the case of a “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 its personal responsibility to dummy managers and founders. In accordance with the law, for the period while the liquidated organization was yours, you are responsible. For example, by the 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 against former director and the owner of the company. The court saw no grounds for bringing a new one. Was there new leader and the owner is a dummy who "bought" the troubled company, or is simply a naive person, we can only guess. It is not clear from the materials of the case, but it is clear that it does not matter. The offense was committed during the period of the former leader, so he is responsible.

Since we have brought up the topic of dummies, one more thing. Transferring responsibility to such a person is problematic in principle. Law enforcement agencies usually easily establish that such transactions are fake in more complex cases. For example, according to the materials of case 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, the actual head of the company was involved for tax violations, who formally never had anything to do with it. The company has had a dummy founder and director since registration.

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

After making a decision on reorganization, the company is obliged to notify about this in its tax office... In accordance with Art. 89 of the Tax Code of the Russian Federation, the tax authority in this case has the right to conduct an audit regardless of the time and subject of the previous one. Whether he does it or not depends on the region, the turnover of the company 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. Let's say there was no check and the reorganization went without consequences. So what, why on earth would the likelihood of an audit of the successor company be less than yours before the "reorganization"? Maybe more? Maybe. In the market for “reorganization” services, competition is strong and, in order to earn money at low prices, the participants came up with “two's”, “three's”, and I even met in court practice when the liquidators collected ten companies in a successor. That is, they will merge and merge your company along with two or three of the same, this gives savings. The probability of checking such a successor is, by definition, higher than any predecessor individually, and if among the friends, unfortunately, there is also a company “with history”, it will pull the entire team to the bottom. Verification of the successor also means verification of the activities of the predecessor company. And who will be responsible for its activities? Of course, the one who controlled or owned it before the "reorganization". For example, by the judgment of the Ustinovsky District Court of Izhevsk, the Udmurt Republic of 07.07.2008 in case 1-385 / 08, the head and founder of the company was found guilty under Art. 199 of the Criminal Code of the Russian Federation in the commission of tax crimes in 2005-2007, although by the time tax audit and by 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 of the alternative liquidation of an LLC or CJSC is that the legal entity remains. By itself or in the form of a legal successor - it is not so important, legal implications are the same. In the future, about 20% of them will be checked, and the former management and owners will be prosecuted for tax crimes.

Due to our specifics, not a week goes by without the person controlling the company turning to us for help in such a situation. The origins 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 FTS decides to conduct an audit regarding 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 primary funds in no way prevents from calculating taxes by calculation, 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 FTS simply uses the data of bank payments and makes additional charges (for VAT) on the entire amount of the company's turnover over the last three years. The legality of this has been confirmed many times jurisprudence 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 worth paying attention to. The taxpayer did not submit part of the documents, referring to the fire. Moreover, the fact of the fire was documented in a letter from the State Fire Supervision Department with a list 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 is the cancellation of sanctions for deliberate failure to submit documents. The "official" fire did not save from the additional charges themselves.

After additional charges, the tax authority will send by registered mail tax claim. 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 the 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 with them, the person who controls the company, who has already forgotten about his “liquidated” company, understands that he needs emergency assistance, and at that moment turns to us.

These stories have one beginning, but the ending is different - good or bad. Good. It is possible to quickly find the dummy directors and founders, on whom the company or its legal successor was re-registered during the alternative liquidation of an LLC or CJSC. They initiate the procedure formal liquidation enterprises and a new leader - chairman liquidation commission will send an application for declaring the company bankrupt. The court ruling on the completion of the company's bankruptcy procedure 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 terminated by lawyers.

It was good script, but such a possibility is not always available, and it is not only technical factors such as the fact that it is impossible to find a dummy director. The point is different - the FTS often initiates bankruptcy first. If this happens to you, I would not 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 bankruptcy 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 as a manager. This will predetermine his loyalty and the result of the procedure.

Bad news. Recent times The FTS itself began to initiate bankruptcy of companies and to bring their management and owners to subsidiary liability.

The Federal Tax Service knows how to make an insolvency administrator look for money and property of a company with a particular bias, or, if it fails, to shift the debt onto you personally within the framework of subsidiary liability. Payment for his work will be directly dependent on the value of the property and funds awarded. 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 corpus delicti. Suspicious transactions will be challenged by them in order to return the assets, and the corpus delicti will be used to bring you to criminal proceedings - as a way of pressure and subsidiary liability. Law enforcement and tax authorities will be used to gather relevant information and evidence. I believe that many of your actions will be qualified against you. Even by a little description Our history can predict that, if necessary, law enforcement agencies will easily prove the feigned or fictitious nature of relations with dummies, as, for example, in the case A40-61317 / 09-74-256 of the Moscow Arbitration Court. A fraudulent person will not take on any responsibility and will immediately confirm the fake of the transaction, moreover, the "liquidators" often use only passport data to save money, and the documents are signed by unidentified persons. In most cases, the front person 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 has its own history. 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 remember two such cases from a past life - A41-1223 / 08 and A41-14241 / 10 of the Arbitration Court of the Moscow Region and learn a lesson. It can be seen from them that the leader unprofitable enterprise decided to withdraw assets - real estate, and then close the company itself. He implemented a complex scheme of alternative liquidation of the organization - change to denominations with subsequent double reorganization. The arbitration manager, in the interests of the Federal Tax Service, challenged all reorganization actions. According to his statement, 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. to the bankruptcy estate. 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 to evade the payment of taxes 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, deliberate bankruptcy is the basis for bringing to subsidiary liability and criminal under Article 196 of the Criminal Code of the Russian Federation "Intentional bankruptcy". It is not easy to prove the deliberate bankruptcy of an LLC or CJSC, therefore, let me remind you that it came into force in June 2009 the federal law 73-ФЗ, 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 - failure to submit documents to 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 the Leningrad region. Another example of this reason is case А81-6369 / 2009 of the Arbitration Court of the Yamalo-Nenets Autonomous Okrug. It follows from it that the Federal Tax Service initiated the bankruptcy of the company and the arbitration manager appointed on its behalf brought the former head to subsidiary liability for 8.5 million rubles for the fact that the head did not transfer the primary accounting documents. Moreover, the court's ruling emphasizes that since the transfer of documents is his duty, then “the obligation to prove the proper performance of this duty by virtue of Article 65 of the Arbitration Procedure Code of the Russian Federation lies with the former head” - presumption of guilt.

The second new reason, which is easy to prove, is the failure to file a bankruptcy petition for an LLC or CJSC. Please note that if your company has become insolvent, you must submit an application within one month from the date of occurrence of the relevant circumstances. 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 Ishimsky 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 behalf brought the former manager 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 a bankruptcy petition are today the most popular grounds for bringing to subsidiary liability. They are easy to prove and difficult to overcome. In the alternative liquidation of an organization, you create them yourself and drive yourself into a trap ...

For those who like alternative liquidation, I would like to inform you that today the FTS has spread several practices that are dangerous for the former owners and management. We examined one in detail - this is the verification of the company or the assignee, 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 primary funds and, if they do not pay, initiate criminal prosecution and bankruptcy proceedings of 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 - it is the abolition of the very 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 receiving Inspectorate of the Federal Tax Service in the fight against "migrant companies" and the company, quite unexpectedly for the previous owner, returns to him. The tax authorities simply check the company at a new address, which is often the well-known address of the mass registration, and, failing to find it there, go to court. The example of the same court clearly shows that this practice is of a regular nature: case А55-25289 / 2011, case А55-27163 / 2011 and case А55-31647 / 2011 of the Arbitration Court of the Samara Region.

The same situation is with the reorganization. Lack of a legal successor the specified address and signs of any financial and economic activity thereof 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 the Leningrad Region. Ten companies took part in the first "reorganization", in the second and third, five each and all of them returned back to their former owners on the initiative of the Federal Tax Service Inspectorate.

Pay attention once again to how many companies the liquidators are merging into one. As we understand, everyone is trying to get rid of problematic companies, and among such a number it is likely that there will be one that will make it mandatory to check the successor and, accordingly, all predecessors. This is often a hidden reason for the desire of the Federal Tax Service Inspectorate to cancel the reorganization in order to simplify its life.

The cancellation of the alternative liquidation of a legal entity by a court decision, whether it be the transfer of a company to a region or its reorganization, is today a well-established and fairly common practice for the Federal Tax Service, due to its simplicity and efficiency.

At the end of 2011, another surprise awaited us - the presidential law "on fly-by-night firms." This law introduced, among other things, criminal liability for the use of dummies 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 would become a crime in itself. In the meantime, I would like to 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 with the involvement of the face value.

The 2011 presidential fly-by-night firm law criminalized the use of dummies in the creation and reorganization of companies, making alternative liquidation a crime in itself.

Recently, the Criminal Code of the Russian Federation was supplemented with a new article .:

Article 173.1. Illegal formation (creation, reorganization) of a legal entity

1. Formation (creation, reorganization) of a legal entity through dummies -
is punished with a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of wages or any other income of the convicted person for a period from seven months to one year, either by forced labor for a period of up to three years, or by imprisonment for the same period.

2. The same acts committed:

A) by a person using his official position;
b) by a group of persons by prior conspiracy, -
shall be punishable by a fine in the amount of three hundred thousand to five hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by compulsory works for a term of one hundred and eighty to two hundred and forty hours, or by deprivation of liberty for a term of up to five years ...

Note. In this article, dummies are understood as persons who are founders (participants) of a legal entity or governing bodies of a legal entity, by misleading which the legal entity was formed (created, reorganized).

But our businessmen with rich experience in "opening and closing companies" now either do not know this or do not realize the new danger that lies behind a simple change to face value - individual and act on the knurled "leaked and forgotten".

Previously, everything was simple - they brought the company for liquidation, changed the founder and director to a homeless-nominal-investor and that's it, no responsibility, since he is "responsible" for everything new director... Everything "rolled", so everything will be the same now. Inexpensive in terms of money, fast in terms of time, the directors are the same.

Now, with the appearance of Articles 173.1, 173.2, the situation has changed. There is already practice and convictions. But the most interesting thing will happen next, when the director is the nominal in the firms. Sooner or later, a very economical customer will appear who decides to liquidate his company in the cheapest way, while keeping silent about the problems in the company.

Further, everything is simple, they call a new director of the nominal for the company, where the problems are, at which, as it turns out, there are still a hundred companies, which of course " knows nothing, did not intend to conduct activities and was brazenly misled a hundred or two hundred times". And he was delusional, together with lawyers - that is, a group of persons by prior conspiracy. Up to five years in prison. And the testimony from the former founders, they say," we just sold the company ", does not sound very convincing here, and most importantly - not appropriate.

That is, only on the testimony of one new director of the nominal is possible excitation under Art. 173.1 of the Criminal Code of the Russian Federation. It is naive to believe that the new director will be a person of principle and will take everything upon himself, since otherwise he will go for 173.2 for providing documents, where a real term of imprisonment is also quite possible. So he will write whatever is needed.

Further, the house of cards begins to collapse. After all, if the new director denomination testified that he was misled by LLC Vasilek, then he was also deceived by LLC Snezhinka and all other hundreds of companies. This implies a successful and fruitful work of law enforcement agencies with the former founders and directors of these firms, who took advantage of the alternative liquidation at par. Particularly desperate businessmen who managed to liquidate firms with debts in this way, rewriting everything to a figurehead, risk attaching a couple more articles from the criminal code to 173.1 of the Criminal Code of the Russian Federation.

Our company is able to give detailed information and advise you on the liquidation of the enterprise. To do this, you just need to have the appropriate constituent documents with the seal of the enterprise. We will take the rest of the steps.