Responsibility of the founder of an LLC: what company participants are responsible for 2018

Let's consider the main types of responsibility for the founder and director of an LLC in 2018.

Main types of responsibility for the founder and director of an LLC in 2018

What is the liability of an LLC founder? A novice businessman usually remembers and confidently states the following phrase: “an individual entrepreneur risks all his property, and the liability of the LLC founders is established only in the amount of the share in the authorized capital.” The Civil Code (Article 87) does contain this statement, but this is only part common system rights. You cannot be guided by one rule of law without taking into account the others!

What is wrong with a new entrepreneur? If the LLC is doing well, then all the company’s obligations (debts to suppliers, partners or the budget) are repaid with its own funds. LLC - independent legal entity: takes out loans, earns money, pays off creditors, ... This continues as long as the LLC exists.

But if the company is declared bankrupt, the situation immediately changes. The company's property is not enough to pay off its debts, and (participants) fall due. This norm is established by Article 3 of the Federal Law of 02/08/1998 No. 14-FZ “On LLC”. Vicarious liability is not limited in size authorized capital and must correspond to the amount of debt to the creditor. And the founders brought to subsidiary liability are required to repay debts at their own expense.

It is necessary to make a reservation that in the event of bankruptcy one is not always brought to subsidiary liability: the legislation provides for a number of conditions, which we talk about in the article “Subsidiary liability of LLC founders.” The point is that the founder should not be “let go with the flow” open company without wondering who is responsible for its activities. Limited liability of founders in fact, it may turn out to be unlimited, and if the outcome is unfavorable, the company’s debts will have to be covered from one’s own pocket!

Let's consider the types of liability to which the founder may be held.

​Joint and several liability

Joint and several liability, unlike subsidiary liability, implies joint fulfillment of debt obligations. It does not matter which of the debtors and in what amount the debt was repaid. Occurs in the following cases:

1. At the stage, before it state registration. This may include obligations to pay for consulting services, print production, etc.
2. Upon liquidation of the company. In accordance with Article 62 of the Civil Code of the Russian Federation, the founders (participants) of a legal entity are obliged to take actions to liquidate it at the expense of the company’s property. If the company’s property is insufficient, then the founders (participants) are obliged to carry out the liquidation procedure jointly and severally at their own expense.
3. If the participants have not fully paid for their shares in the authorized capital. In this case, joint liability arises for the obligations of the company within the value of the unpaid part of the contribution of each of the company participants (clause 1 of article 87 of the Civil Code of the Russian Federation, clause 1 of article 2 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Companies responsibility").

Criminal liability of the founder

The founder is considered a decision maker, that is, a manager. Therefore, his actions (or inaction) may be qualified as damaging to the company or violating the law. Even if the founder did not directly manage the company, but acted through a hired director, he can be brought to criminal liability if there is evidence of guilt.

Occurs when the following articles of the Criminal Code of the Russian Federation are violated:

• Article 195 “Illegal actions in bankruptcy.” Offenses of this article include concealment of property, failure to provide information about it, unlawful satisfaction of property claims of creditors, obstruction of the activities of an arbitration manager or temporary administration. Punishments under this article vary significantly: from a fine of 100 thousand rubles. to imprisonment for up to 3 years.
• Article 196 “Intentional bankruptcy”. Intentional bankruptcy is qualified if the founder has committed actions that obviously lead to bankruptcy. Punishment is a fine of 200-500 thousand rubles, forced labor for up to 5 years or imprisonment for up to 6 years.
• Article 197 “Fictitious bankruptcy”. If the founder knowingly makes a false declaration of bankruptcy, he faces a fine of 100 to 300 thousand rubles, forced labor for up to 5 years, or imprisonment for up to 6 years.
• Article 199 “Evasion of taxes and fees from an organization.” Under this article, the founder can be charged as an accomplice to the crime (the main defendants are the head of the company and the chief accountant). Of course, the entrepreneur’s involvement must be proven.

From the above it is clear What responsibility does the founder of an LLC bear?, if he wants to “bankrupt” his company without paying off creditors. If the liquidation of the company took place without a bankruptcy procedure, then there is nothing to hold the founder accountable for.

Tax and administrative responsibility

The founder is not responsible for tax and administrative offenses committed by the company itself. Only officials guilty of offenses can be held accountable for such types of liability. At first glance, the director and chief accountant, who were hired under an employment contract, are always to blame. It was their incompetence, neglect of duty or criminal intent that led to the company's debts and losses.

However, any employee has the right to protection: he can prove in court that he was forced to limit his activities in accordance with the requirements or direct instructions of the owner. Then liability is removed, bankruptcy proceedings are initiated, after which subsidiary liability may be imposed on the owner.

Naturally, tax and administrative liability is possible in the case where the founder and director are the same person. If the owner has assigned himself the functions of the sole executive body, then he bears all types of responsibility personally.

Hello! In this article we will talk about the liability of the director of an LLC for debts.

Today you will learn:

1. What can a director be held accountable for?
2. What are the features of the founder’s liability for the company’s debts;
3. What are the administrative and criminal responsibilities of the director of an LLC.

Often, company leaders make decisions alone. This also applies to LLCs. Since the director is the person who directly manages the company, he is responsible for all actions that were carried out illegally.

Responsibility of the director for debts

Oblige the director to fulfill debentures realistically, but this will have to be done through the courts. The evidence provided must be compelling, confirming that due to the actions of the director and founders, the company suffered losses and was approaching.

List of grounds for litigation

• Concluding transactions that resulted in losses;
• Concealment of signed agreements and distortion of data;
• Concluding agreements without agreement with other LLC bodies;
• Keeping important documents with you after leaving office;
• Signing agreements that are obviously unprofitable;
• Cooperation with companies that are not trustworthy.

Of course, you cannot expect perfect actions from a leader; everyone makes mistakes. It is also impossible to calculate all the risks, but there are certain limits within which errors are permissible. When these boundaries are violated, responsibility will follow.

If we talk about losses, they are subject to compensation.

How much depends on the circumstances, namely:

• On the amount of direct damage;
• On the amount of indirect damage;
• From the amount of lost profit.

General director's liability for debts

There are special requirements for the general director. This is justified, since it is within his competence to carry out all functions for the development of the company. General directors may be subject to the sanctions that are set out in a number of legislative norms.

The CEO can be punished not only financially, but also bear administrative and criminal liability.

Let's present it in the form of a table.

No.	Type of responsibility	Characteristic
1	Material	If the manager combines his position with the responsibilities of the head. accountant, he is responsible for the damage that the company suffers due to his erroneous actions
2	Administrative	Punishment can be imposed both on the company itself and on the manager.
3	Criminal	Provided if gen. the director committed criminal acts, economic fraud, did not pay taxes, etc.

Let us now consider all types of liability in more detail, and also dwell on the amount of fines.

Responsibility under the Administrative Code

If we talk from a legal point of view, here the head of the LLC as a person holding a certain position and the company itself will be held accountable for offenses. Moreover, punishment cannot replace or cancel another.

Composition of offenses for which penalties of up to 5,000 rubles are imposed:

• Ignoring sanitation requirements;
• Illegal lending.

Penalties from 5 to 30 thousand rubles and/or disqualification for 3 summer term are punished:

• A number of violations committed in the advertising sector;
• A number of violations committed in customs clearance;
• Implementation of unconscionable ;
• Implementation of fictitious bankruptcy;
• Providing services and selling goods of poor quality;
• Refusal to provide information to the Antimonopoly Service;
• Violation of general meetings;
• Concealing information about the company's foreign currency accounts abroad.

More serious fines, that is, over 30 thousand rubles, are paid if:

• The head of the LLC violates fire safety rules;
• The head of the LLC violates migration laws and attracts foreign labor to work (with violations in the hiring procedure);
• For carrying out illegal currency transactions.

Responsibility to the tax authorities (administrative):

• Violation of the deadlines within which registration must be carried out;
• Lack of a business license;
• Violation of deadlines for filing declarations;
• Activities without cash register;
• Violation of reporting deadlines.

Criminal liability

In this case, it is important to clearly see the fine line when an administrative offense becomes a criminal offense. And it lies in the amount of damage that was caused.

For example, it may qualify under both the Administrative Code and the Criminal Code, depending on how wide the scope of this business is: up to 1.5 million rubles or more than this figure.

The actions that will be listed below imply bringing the director of the LLC personally to criminal liability:

• , or a woman with a child under 3 years old;
• Violation of the terms of payment of salaries to employees for more than 2 months, for selfish purposes;
• Violation of copyright laws;
• Exceeding official authority;
• Carrying out commercial bribery.

Categories of crimes in the economic sphere

• Carrying out illegal business on a large and especially large scale;
• "Laundering" financial resources, which were obtained in a way related to the commission of crimes;
• Unfair competition on a large and especially large scale (1-3 million rubles);
• The company uses other people's trademarks what causes the damage;
• Failure to pay tax payments on a large and especially large scale;
• Concealing property from the Federal Tax Service.

Criminal liability for tax-related violations occurs if the amount of payment debts is more than 2 million rubles and has not been paid for 3 years.

In other situations, the gene. the director will not be responsible for non-payment of taxes, the subject will be a legal entity. face.

Sanctions under the Criminal Code

• Collection of a fine of up to 300,000 rubles;
• Implementation of arrest for up to 6 months;
• Community service – maximum 480 hours;
• Imprisonment in MLS - up to 7 years.

More significant penalties are also provided:

• Fines up to 1 million rubles;
• Work for the benefit of the state - maximum 5 years;
• Imprisonment – ​​maximum 12 years.

The punishment directly depends on the seriousness and gravity of the act.

Gradation by statute of limitations

Criminal proceedings can be initiated for those violations for which taxes can no longer be collected.

It is known that Federal Tax Service specialists can verify information only for a period not exceeding 3 years.

And cases under the Criminal Code are initiated within specific statutes of limitations:

• 2 years, if the gravity of the crime is minor (large taxes are not paid);
• 6 years if the severity of the crime is average (manipulation to conceal property or finances);
• 10 years, if the crime is particularly serious (especially large amount of tax evasion).

We conclude that investigators have the right to initiate a criminal case for non-payment of taxes on a particularly large scale within 10 years from the date of commission of this crime. And this is several times longer than the period that can be checked by tax authorities.

How to avoid punishment under the Criminal Code

There is such a chance. Required condition for this purpose, committing a crime for the first time, as well as full repayment of debt, arrears and penalties.

This must be done before the court date is set. Otherwise, the fact of repayment will only mitigate the guilt.

Subsidiary liability of the director for debts

This term refers to the liability of the director and founder of the LLC for debts. Thanks to this mechanism, debts are collected from the personal funds of the director and founders.

When it occurs:

• If the LLC is declared bankrupt.The bankruptcy of a company can only be recognized by the Arbitration Court. The condition for this is the presence of debts of at least 300,000 rubles;
• When the actions of the founders and directors led to the fact that the LLC cannot fulfill the requirements of creditors.

Practice

The creditor usually only has confirmation that a particular company has a debt to it. This is enough to initiate bankruptcy proceedings for a company, but it is clearly not enough to hold the director and founders vicariously liable.

The plaintiff does not know which transactions of the debtor are considered suspicious; only the arbitration manager has access to this information. The plaintiff can only agree or disagree with his presentation.

The arbitration manager can prove that the debtor acted lawfully and justifiably, in which case the company is declared bankrupt.

As a result: bankruptcy, although important condition in order for subsidiary liability to arise, but it can be a benefit for the company itself. It is because of this that there are attempts at fraud among persons who are debtors.

According to many lawyers, it is difficult to prove the guilt or intent of the LLC director or founders. Although statistics show that there are cases of evidence in judicial practice, and the company’s debts were collected from its participants by court decision.

Responsibility of the founder for the debts of the LLC

If we talk about facts, the risks for founders are small. But there are also pitfalls here. If it is proven that the company is approaching bankruptcy due to the actions or inaction of the founder, the losses incurred can be recovered from him.

If the founders committed a criminal act during their activities, they will be held accountable for it.

How can a manager protect himself?

If the manager fulfills his duties without violating the law, he has nothing to worry about. You will not have to pay the company’s debt obligations out of your own pocket.

• Create a commission that will deal with the transfer of affairs from the previous leader (when you take office);
• Accept company seals and stamps according to a special act;
• Check out the list of persons who have the right to sign documentation;
• Conduct an audit of all contracts with contractors and partners of the company;
• Avoid disputes between society participants as much as possible, especially do not take sides in them;
• Do not look for workarounds, but rather try to find legal means to compensate for the loss;
• Do not violate the rules for approving transactions;
• Don't try to avoid responsibility by resigning. Even if the manager is already a former manager, he must cover losses if they are his fault.

If the director of the LLC renounces his powers, but does not compensate for the damage, another general director is elected. The shareholders remove the previous manager and appoint a new one at a general meeting. This must be done.

If the company is under pressure from obligations, there is no need to panic, nor should you leave your post, especially since this is not an option. Analyze the actual circumstances and, if necessary, turn to outside specialists. Don’t let yourself down from the start by entering into contracts that are obviously unpromising.

Let's summarize. If a decision has been made to head an LLC, you need to adequately assess your capabilities, as well as analyze information and increase the “transparency” of the company’s activities.

The use of government coercive measures constitutes legal liability. It applies to the offender. For committing an illegal act, a person is responsible before the law.

Attraction algorithms

Establishes that he is not liable for the obligations of the company. The LLC, in turn, is not liable for its debts. Thus, it turns out that the founder of the LLC is liable only to the extent of the authorized capital.

As for the JSC, its participants bear responsibility within the limits of amounts contributed by payment for shares. This provision is provided for in Art. 2 clause 1 of Federal Law No. 208.

If an organization is solvent, pays taxes to the state on time, payments to counterparties, then its cannot be sued for debts. Therefore, ordinary people, who are little familiar with the laws and the changes that have occurred in them, create a false impression that the founders and participants of LLCs and JSCs lack real responsibility.

But the algorithm for holding accountable, for example, the participants of an LLC, is as follows: as long as the company operates, limited liability is valid. If the company is in the process of bankruptcy, the founders may be subject to subsidiary liability, as well as additional liability.

But in this case, one caveat applies: creditors who want to get their money back must prove that the short-sighted and, in some places, illegal actions of its founders and participants led to the collapse of the company.

The possibility of imposing subsidiary liability on these persons is indicated.

Responsibility of a legal entity and LLC participants

No. 127-FZ is intended to protect the rights of creditors. Its provisions are aimed at applying one or another method of protection within the framework of bankruptcy, and compensation and liability depend on the degree of guilt of the founder.

Legal consequences of a guilty act can be eliminated in certain ways. For example, within the framework of recognizing the transactions they have completed as illegal: in this case, according to the Civil Code of the Russian Federation, provisions on the invalidity of concluded contracts will be applied to such legal relations.

In addition, there is an option to involve these individuals in different types responsibility.

Manager and founder rolled into one

This person is liable within the authorized capital of the company. In addition, subsidiary liability if bankruptcy proceedings are initiated by him or a creditor or other interested party.

Vicarious liability is considered as an additional punishment for persons who may be subject to collection together with a debtor who is unable to pay off debts. But the grounds for imposing this punishment are strictly regulated by the law.

Conditions within the authorized capital

The conditions under which the founder of the company is liable for debts within the amount of the authorized capital are determined by the Civil Code of the Russian Federation and No. 14-FZ. In the event of liquidation of a company or its bankruptcy, the founder is liable exclusively with the property of the organization and its assets.

If an enterprise has suffered a financial collapse, its debts to creditors and counterparties exceed the value of the enterprise's property, the founder may not cover the difference. This is due to the fact that he is not liable with his own property for the debts of the LLC.

Thus it is different from legal status the same individual entrepreneur who personally, with his property, pays off the debts of the individual entrepreneur. That is why, according to existing statistics, citizens are more likely to try, and individual entrepreneurs are created less often. It turns out that the shareholder of the LLC does not actually bear the risk of losing his own property.

Debt settlements

Bringing the guilty person to justice for arrears of money to the state treasury cannot exempt him from paying subsequent amounts. Responsibility for arrears within the legal entity lies with its officials (general director, chief accountant), in addition, the legal entity itself may be the subject of liability (except for criminal liability).

For non-payment of taxes

Liability is established by the Tax Code of the Russian Federation; in addition, in relation to a company that evades payment of mandatory fees, the provisions provided for by criminal law apply. Forms of responsibility:

• administrative;
• tax office

Loans

Banks issue loans to legal entities. If the borrower violates the loan agreement or its individual provisions, the bank has the right to file claims with the organization aimed at eliminating the violations.

Since credit legal relations imply mandatory out-of-court procedure for resolving a controversial issue, banks first send a claim. You need to make sure that it is reviewed by the other party.

If a response to the claim is not received within a reasonable time, the bank may go to court. The claim is drawn up in accordance with the form established in Article 131 of the Code of Civil Procedure of the Russian Federation, with a demand for payment of the debt, with interest and a penalty under the current contract. In case of a positive decision of the judge, the legal entity is obliged to pay the debt, cover the penalty with all%, that is, fully comply with the requirements of the credit institution.

If a legal entity cannot fulfill its financial obligations to the bank, repeatedly, for more than three months from the date of payment of the loan, then the bank has the right to initiate bankruptcy of the company.

In case of bankruptcy

Bankruptcy is a rather lengthy procedure that contains certain signs. In particular, a legal entity may be declared insolvent if it:

• collectively owed creditors a sum of 300,000 rubles (taxes and fees to the state treasury are also included in this amount);
• the company violated payment terms: has not paid creditors for more than three months;
• employees of the enterprise (organization) have not been paid wages, severance pay.

Bankruptcy can be initiated by the LLC itself, as well as by other persons interested in this process:

• prosecutor;
• creditors;
• authorized state bodies.

As part of the bankruptcy of a company, a bankruptcy trustee acts. The purpose of this procedure is not necessarily the liquidation of the legal entity. In most cases, the task of bankruptcy is different - financially improve the enterprise and give it a new life.

The bankruptcy trustee has the right to make claims against the founders of the LLC for subsidiary liability. This happens only if, based on the analysis of the activities of the legal entity, it was revealed that the financial collapse occurred due to the guilty actions of the founders.

New conditions for liability include:

1. The debtor may have a person controlling him. This citizen acts for the benefit of not only creditors, but also the organization itself for its financial recovery. If violations are revealed in the actions of the controlling person, then he, together with the founders of the bankrupt company, bears subsidiary liability for compensation for damage caused to creditors. It must be caused subject to the execution of the instructions of the persons who control the debtor, as well as in the fulfillment of the current obligations of the company in the event of insufficiency of its property, which constitutes the bankruptcy estate.
2. The law establishes the grounds on which a controlling person can be held vicariously liable. In particular, causing harm to creditors, the presence of a causal relationship between harm and consequences.

Vicarious liability is conditioned by the legal entity not being brought to bankruptcy in pure form, and more - causing harm to creditors. And causing harm to the property rights of creditors is associated with a fairly large list of illegal actions of persons controlling legal entities.

According to the new rules, we can clearly say that an illegal action of a controlling person is an action aimed at aggravating the property situation of a legal entity that cannot pay its debts, having obligations to creditors.

You can learn more about the responsibility of LLC founders from this video.

The problem of bringing legal entities to criminal liability is one of the most intractable in the Russian Federation. The fact is that, unlike foreign countries, in Russia a legal entity is not a subject of criminal liability. According to the Criminal Code of the Russian Federation, only sane citizens bear criminal liability. What should we do about involving a legal entity in this type of liability?

Recruitment procedure

Until the legislator considers it necessary to amend the Criminal Code of the Russian Federation by introducing amendments to it regarding bringing an LLC or JSC to criminal liability, it is valid for it Code of Administrative Offenses. It is in this law that we can see all the penalties that are currently provided for legal entities:

Many lawyers say that in the practical activities of legal entities it is advisable to introduce such punishment as a warning. But at the present time the most common punishment is fine. It can vary in size: it all depends on the guilty act.

A fine is a punishment of a property nature. The provisions of the Code of Administrative Offenses of the Russian Federation, however, do not cover other situations that can be considered as punishment for legal entities. These are circumstances such as:

• suspension of the enterprise;
• changing the enterprise quota regime.

It is believed that these provisions go beyond the administrative regulation of the enterprise. Accordingly, they cannot be imposed on a legal entity.

When a fine is imposed on a legal entity, it is obliged to pay it within a strictly defined period of time by law. This can be done through Sberbank, as well as other payment services. The legal entity must have proof that it has paid the fine. This is a receipt.

One of the penalties is the forced liquidation of a legal entity. The measure is established by the Civil Code of the Russian Federation, in particular, in Article 61, paragraph 2. This occurs if a legal entity, without permission, engages in work for which it is necessary to obtain a license.

In addition, there are a number of grounds on which a legal entity can be forcibly liquidated.

All about responsibility general director LLC - in this video.

If there are several founders, then the required amount is divided into parts, according to the documents. The first and most important of them is the organization's charter. It contains main information about the company: about the founders, principles and fundamentals of operation, etc. The article is devoted to the question of what responsibility the founders of an LLC have today.

Founders and their number

A limited liability company can be created by citizens of the Russian Federation in the amount of 1 to 50 people. In addition to individuals, legal entities can also be founders. If the founder of the company is one person, then all issues, as a rule, are resolved quickly, without unnecessary discussions, the powers of the founder of the LLC are clear and transparent. However, in the case of shareholders, the situation is somewhat more complicated, since they may have directly opposite views.

Therefore, when there are a considerable number of them, a governing body is created: a general meeting. The fate of the company and the answers to the most important questions depend on his decisions. On general meeting appointed executive body carrying out the activities of the organization and responsible for the actions of all employees.

Share of participants

All founders of a limited liability company contribute a nominal share, the size of which is determined in fractional and percentage terms. The amount is determined by the law adopted at the time of registration of the organization.

At the same time, the authorized capital cannot be less than 10,000 rubles. Up to 20,000 rubles incoming common property can be assessed by the participants of the limited liability company themselves. For a higher amount, a professional appraiser is invited.

Authorized capital funds are expressed only in rubles. Shareholders contribute property valued at banknotes, things or real estate with confirmed rights to them. Contribution to the authorized capital is carried out with supporting documents of ownership. Copies of invoices or receipts must also be provided. In order to determine the final cost, they sign the corresponding document or keep a document from an independent appraiser.

LLC management by founders

The founders of a limited liability company create an organization for the purpose of generating profit through the implementation of certain activities. For certain areas, licenses may also be required. An LLC, as a rule, is opened for an unlimited time, unless otherwise stated in the charter itself.

As mentioned, the main governing body is the general meeting, where an executive body is elected, often one person, in the form of the general director. The manager acts in the interests of shareholders. If he causes damage as a result of his unqualified actions, he bears responsibility.

There are often 20 or more founders of an LLC. In this case, it is necessary to create an audit commission. It may include more than just one founder. Those who are not interested in the results of the organization’s activities are also allowed to participate.

Financial responsibility

If values ​​are lost during the work or inaction of the general director, he must bear for it financial liability. This includes reimbursement for the costs of the person whose rights were violated, as well as payment for the cost of damaged or lost property, which may include lost profits.

If the manager acted unlawfully, he may be subject to subsidiary liability. The founders of an LLC, for example, may be concerned about the fact of bankruptcy (after all, the general director could have brought the organization to this stage deliberately) or the discovery of facts of distortion of accounting and other reporting.

Criminal liability

Illegal actions may result in prosecution for economic crimes or crimes against the human person. There are different penalties for these types of criminal offenses. The offender may get away with a fine or imprisonment. In this case, measures can be combined.

If the crime is of minor significance, then the offender must pay a fine as punishment. If the illegal actions were of a serious nature, then they are punishable by imprisonment.

and punishment for them

Let's look at several types of crimes and punishments for them.

For the following series of criminal offenses, a fine of up to 300,000 rubles may be imposed or imprisonment of up to 7 years, as well as community service.

The liability of the LLC founders and, in particular, the manager extends to deliberate bankruptcy, non-return of funds due to illegal manipulation and non-payment of large sums of money.

Due to various types of discrimination in hiring, illegal dismissal of vulnerable citizens, violation of rights to an invention, obtaining secret commercial information and other information through the use of physical force, criminal liability is provided.

In addition, actions that, although they fall under the article of the Code of Administrative Offenses of the Russian Federation, are committed on an especially large scale, become criminal offenses.

A more serious punishment, namely a fine of more than 300,000 rubles, imprisonment for more than 12 years or 5 years, awaits the offender in the following cases:

• When distorting information to the tax authorities in order to achieve bankruptcy status, monetary bribery and bribery.
• If there is a proven fact of large concealment of large amounts or non-accounting of property in order to reduce tax debts.

Administrative responsibility

For committing less serious offenses, liability is imposed under the Code of Administrative Offenses of the Russian Federation. Thus, the head of the company is punished with a fine of up to 5,000 rubles in the following cases.

• With constant deception of clients, violation of the registration procedure, changes in tax information.
• When working without obtaining the appropriate license, concealing information about bank accounts and refusing to submit a tax return.
• At systematic violation sanitary rules at the enterprise, worsening epidemiological situation, ignorance of financial statements.
• In case of violation of trading rules.
• In case of violation of reporting with currency.

The general director faces a fine of up to 30,000 rubles, as well as a three-year disqualification in the following cases.

• When an organization is driven to bankruptcy or competitors are illegally eliminated.
• When replacing products with a quality certificate with cheap analogues, non-compliance sanitary standards and technical characteristics.
• Failure to comply with the rules regulated at general meetings and illegal adoption of important decisions.

The manager may face a fine of more than 30,000 rubles in the following cases.

• In case of violation of fire safety rules.
• Without properly obtaining a special permit for this.
• When concealing information about an account in the currency of other countries abroad (the fine in this case reaches 50,000 rubles).
• In case of illegal currency transactions, liability is provided for from a third to the full amount of proceeds for violation of the deadlines for the return of foreign currency funds to Russia.

Liability for debts

If you read the law “On Limited Liability Companies”, you will find out that the founder is not responsible for the debts of the organization. At the same time, the LLC also does not pay off the obligations of this person. But the charter may provide for cases when participants in a limited liability company are nevertheless involved in it.

For example, the founder may be required to pay an amount of money, but not higher than the amount he contributed to the authorized capital.

Due to improper management, an organization can be driven to bankruptcy. As stated above, in this case the director of the LLC may be held liable. At the same time, the law on limited liability companies also provides for subsidiary liability for this type offenses.

If an enterprise is liquidated through bankruptcy proceedings, the organization's debts must be paid. If the property of the founder of the LLC is insufficient to repay it, then you will have to pay with your own monetary and material values.

Responsibility for different LLCs

There are cases where an LLC is created from a partnership. Then the former comrades, and currently full participants, are liable for two years for debts.

There are situations when the founder of an organization is a legal entity. Then, if there is a debt, he will also have to bear responsibility if the share of the founder is such that it may affect the resolution of issues raised at the general meeting. The subordinate organization may even demand compensation from the parent organization for losses that arose due to the improper influence of the main founder on the company's activities.

Moreover, the parent organization is also responsible to the tax authorities in the event of liquidation of a subsidiary. She will have to pay the main fines and penalties at her own expense or, if possible, from the amounts received after the sale of the subsidiary company's property.

However, the rights of the LLC founder, as well as his responsibility, extend in accordance with the size of the share capital that was contributed when registering the organization.

Liquidation of the enterprise and creditors

When a company is liquidated, the founders are required to pay legal costs and fees only when they are subject to subsidiary liability.

The creditor should try first to collect the debt from the principal debtor. If this is not possible, the material debt is presented to the person bearing subsidiary liability.

There are, however, situations where a person bearing subsidiary liability sues the principal debtor for an amount that would satisfy the creditor's claims. In this case, the creditor cannot demand subsidiary liability from him. The guarantor notifies the creditor of this. And if the latter again presents his demands, he has the right to demand that the main debtor be brought to justice.

Conclusion

LLCs are active not only in Russia, but also abroad. Such enterprises conduct their business very successfully, for example, in France and Germany. Since little initial investment is needed to run a business and one, three, ten or even fifty founders can participate, this form has every chance of existing for a long time, remaining popular. At the same time, the founders realize that by creating it, they will still be responsible for future fate organizations.

Subsidiary liability of the founder and director of an LLC for debts in 2018

What is subsidiary liability, who will be responsible for the debts of 2018 and with what?

Vicarious liability is the responsibility of the director and founders to creditors and the state for the debts of the company. If a legal entity cannot independently pay off its obligations, then the debt in full financial volume falls on the shoulders of the persons held vicariously liable. It can be assigned to the director, founder, chief engineer or chief accountant, and indeed to any citizen who made decisions or was responsible for the activities of the debtor.

In addition, a new term has been introduced - person controlling the debtor. This is an individual who actually managed the activities of the company, gave instructions or determined the actions of the performers. According to a well-established expression in Russia, “the owner of the company.” In this case, it is not necessary to be legally associated with the company; if the fact of control is established and proven - bringing to vicarious liability inevitably.

Subsidiary liability of persons controlling the debtor citizens are involved who tried to control the activities of the LLC in various ways:

• Directly gave mandatory instructions;
• By persuasion or coercion, officials performed actions with “their” hands;
• Influenced the manager and other decision makers.

​Conditions for the emergence of subsidiary liability

Subsidiary liability of the founder and director of an LLC according to the law arises only if the established company suffers losses. If there are enough assets to satisfy the creditors' claims, then no one can be held vicariously liable.

Otherwise, the following conditions must be met:

1. The person involved must have the right to give instructions that must be followed by the company, or otherwise influence its actions.
2. Must be carried out bankruptcy procedure(hereinafter referred to as the procedure) or the debtor’s application for insolvency has been received.
3. A causal connection must be proven between the actions of the person involved and the ruin of the company. Only illegality of actions leads to subsidiary liability. At the same time, the presumption of innocence of a director or a controlling debtor of a person does not apply - they need to prove their innocence if an application is made against them for vicarious liability.

In turn, subsidiary liability of the director for the debts of the LLC occurs when the debtor’s accounting documentation is lost, distorted or concealed.

Who can initiate the procedure?

• Debtor
• Creditors

Bankruptcy initiated by the debtor

In some cases, it is beneficial for the debtor to apply to the Arbitration Court for bankruptcy. The advantage is that in this case he can participate in the procedure: select a “managed” arbitration manager, block creditors’ claims against the company’s property and at the same time continue activities until the liquidation of the legal entity.

The debtor who initiated bankruptcy must provide evidence of insolvency (for example, the inability to conduct business due to a foreclosure imposed on the property or the inability to satisfy the claims of creditors that exceed the company's assets).

Clause 1 of Article 9 of Law No. 127-FZ lists cases when the head of a company has the obligation to independently file an application for recognition of insolvency:

• After settlements with several creditors, the company will not be able to pay the remaining creditors and (or) pay taxes;
• The management bodies of the LLC (meeting of founders), having considered the manager’s report on financial condition companies have decided to initiate bankruptcy proceedings;
• If, in order to settle accounts with creditors (pay taxes), the LLC is forced to sell its property and will no longer be able to carry out business activities;
• The LLC meets the criteria of insolvency, i.e. there is not enough money to pay taxes and pay creditors;
• The LLC does not have enough property (assets) to pay off its accounts payable.

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It is more correct to submit an application during the liquidation of the LLC. Then the final stage is initiated - bankruptcy proceedings, and the debtor is liquidated according to a simplified procedure. This saves time and money.

Bankruptcy initiated by creditors

The creditor has the right to initiate the procedure, but not everyone. Law 127-FZ uses the concept of a bankruptcy creditor, that is, a creditor for monetary obligations. If you are owed money, then you - bankruptcy creditor. If the debtor did not deliver goods or perform services, then you are not a bankruptcy creditor. A monetary obligation is considered to be various non-payments (for goods transferred, services rendered or work performed), loan amounts (with interest), as well as debt due to damage caused to the creditor’s property or unlawful actions of the debtor. In the amount of the monetary claim, bankruptcy creditors do not include fines, penalties, interest for late payment and damages in the form of lost profits.

When filing an application to declare a debtor bankrupt, a bankruptcy creditor must follow the requirements of the law:

1. At least 3 months have passed since the occurrence.
2. The debt is calculated in the amount of at least 300 thousand rubles.
3. Confirmation of the debt is reflected in the court decision that has entered into force.

Bankruptcy initiated by the Federal Tax Service

The worst option for the debtor is to initiate the procedure by authorized bodies (the prosecutor's office or the Federal Tax Service). The Bankruptcy Law has given the Federal Tax Service special rights that allow filing an application without a judicial act that has entered into force. Unlike ordinary creditors, it is enough for the Federal Tax Service to formalize a decision to collect the debt from the taxpayer’s funds or property. And then, after 30 days, the Federal Tax Service files a lawsuit.

It should be noted that the Federal Tax Service files a claim only if it is sure that the debtor has property. This is due to the fact that the courts require that the facts about the existence of property be established so that there is someone to pay the legal costs and the work of the insolvency practitioners. If there is no information about the property, then the inspection will make every effort to find it, and will make inquiries to Rosreestr, bailiffs, the traffic police, etc. government bodies. The same applies to subsidiary liability - tax authorities will collect evidence on the beneficiaries, and only then will they file a bankruptcy claim.

The procedure for bringing to subsidiary liability

In order to bring the persons controlling the debtor to subsidiary liability, it is necessary to strictly follow the procedure set out in Federal Law No. 127. It is possible to bring the guilty persons to subsidiary liability only during bankruptcy proceedings, when the property of the bankrupt company is sold and settlements with creditors are made.

First, the arbitration manager reviews the bankruptcy case and establishes the circumstances that led to it. It collects information about the debtor’s property, as well as persons involved in the bankruptcy. The manager may request the appointment of an expert examination if he has doubts about the “truthfulness” of the bankruptcy. If signs of deliberate or fictitious bankruptcy are detected, the manager, after declaring the company bankrupt, may file a claim to bring the perpetrators to subsidiary liability. Filing a claim is the sole discretion of the arbitrator. If he does not consider it necessary to do this, then the initiative to submit an application passes to the bankruptcy creditors.

Judicial practice

Judicial practice in cases of bringing to subsidiary liability is extremely contradictory. Let us note several landmark decisions of courts of different instances.

1. The persons controlling the debtor are obliged to prove the validity and reasonableness of their actions themselves if the other party presents arguments against their good faith. Otherwise, the “owners” of the enterprise bear subsidiary liability for its obligations. The presumption of guilt is confirmed by the ruling of the Supreme Court of the Russian Federation dated 03/09/2016 No. 302-ES14-147.
2. Failure to file and harm to the creditor are interrelated. The Supreme Court of the Russian Federation believes that in this case, by definition, there is a cause-and-effect relationship between the actions (inaction) of the debtor’s representative and the loss of the creditor or the state represented by the authorized body. A ruling on this was issued on March 31, 2016 No. 309-ES 15-16713.
3. Officials who did not initiate the procedure in time may be disqualified for a period of 6 months to 3 years. This is especially true for managers who have committed repeated violations of the bankruptcy procedure. This was indicated by the Arbitration Court of the Belgorod Region in its decision dated 06/09/2016 in case No. A08-2321/2016.
4. Responsible persons of the debtor who did not transfer the documentation to the bankruptcy trustee will be held vicariously liable (decision of the Arbitration Court Sverdlovsk region in case No. A60-45815/2014).
5. Debt of 300 thousand rubles. allows the tax authority to file a bankruptcy claim. This amount should not include requirements for payment of personal income tax. They relate to the requirements of the second stage, which are not taken into account when determining the signs of bankruptcy. Resolutions of the Volga-Vyatka District Administration dated March 14, 2016 No. F01-311/2016 and dated October 16, 2015 No. F01-4117/2015 were issued on this matter.

The scheme “establish an LLC - appoint a nominal manager - manage it yourself” is no longer a guarantee of avoiding responsibility. The Federal Tax Service has been given the task of increasing tax collection to the treasury, and tax officials have received enough tools to accomplish this. The circle of persons controlling the debtor is practically unlimited, and each of them can become a target for bringing to subsidiary liability.

In parallel, work is underway to protect creditors from the “controlled bankruptcy” of unscrupulous debtors. Those guilty of deliberate bankruptcy risk not only their own in cash, but also disqualification, and in the worst case - freedom. According to experts, Russian business is entering a stage of increased government control, and we need to be prepared for this.

We figured out when the subsidiary liability of the founder and director of an LLC for debts occurs in 2018, how it can be prevented and resolved. This is the main and most common case in which it occurs. If you have weighed the pros and cons and are ready to open an LLC or create employment contract with the director, a free business registration service will help you with this: