Alternative liquidation of the company and its risks. Alternative liquidation or bankruptcy? Time to change bad habits

They often start thinking about liquidation when the company's activities become impractical and expenses begin to exceed revenues. Alternative liquidation allows you to get out of this situation with the least loss. The official path is not easy. It takes both effort and a lot of time. In addition, the tax office can appoint an audit, and if any shortcomings are found, the founders will face penalties. This is why entrepreneurs are looking for other ways.

What's the best way to close a firm?

Consider how an alternative can be carried out.In this case, there will definitely not be a tax audit, the whole process will take much less time and will be much cheaper. As a result, the enterprise will continue to function, but completely different people will be at the helm, or it will cease to exist. Thus, the founders with clear conscience "Will go to rest."

The procedure can be implemented in different ways. One of them involves the replacement of all the main persons of the company, and in other cases, a reorganization takes place in the form of a merger of one organization with another or a merger when another legal entity arises.

However, you should not think that everything is as simple as it seems at first glance. The tax authorities are showing increased interest in such companies. Therefore, if, for example, the activity continues, then the company may soon expect a tax audit, which will be carried out with special care. The risk of this event may be slightly reduced if the affiliated organization is located in a different region.

So, there are 2 ways how an alternative liquidation is carried out. They differ mainly in the fact that if the composition of the management changes, the company will continue its activities. At the same time, during reorganization, it ceases to exist, and another organization becomes the legal successor.

Reorganization

The necessary steps for the reorganization are as follows:

1. A new charter is being formed.
2. The founders and management are being replaced.
3. All changes are notified to the registration authority, which makes the appropriate entries in the Register.
4. The balance is being drawn up.

In case of affiliation, one of the organizations continues its activities, becoming a legal successor, and the other ceases to exist. In this case, all rights are transferred to the main company.

Merger means the combination of two or more companies into one, resulting in new organization... If the company had no debts for taxes and fees for extra-budgetary funds, then you don't have to worry about checks coming up. At the same time, if it is proved that the merger was carried out in order to evade responsibility, then it may be declared illegal, and the management will have to bear either administrative or criminal liability.

Change of leadership

This way the company is sold to a third party. The old owners will no longer deal with it and will be responsible for current affairs. However, they can always be contacted for questions regarding previous activities.

At the same time, new members first enter the society, are appointed to leadership positions, and the old ones leave it, about which changes are made to the company's charter. In addition, the former founder can be removed by other participants on the basis of a court decision.

What to choose?

Alternative liquidation is a preferable option than official liquidation if the company has no debts. Then you can not even doubt the chosen method and boldly get down to business. Otherwise, the owner should be wary of, that is, the obligations of his property.

Advantages and disadvantages

So, in comparison with the official liquidation of an LLC, it has both pros and cons. Therefore, the choice of the optimal way of how to close a company should be carried out only on the basis of the specifics of a particular situation.

The main advantage is that you can save a lot of time and money, as well as avoid unpleasant communication with government bodies.

But among the significant shortcomings, it stands out that the high risks remain the same for the old owners, and if violations are detected, they can be liable before the law with their property.

Thus, a quick alternative liquidation of the enterprise does not mean the complete ending of the story for the entrepreneur. It can only be guaranteed by a longer and more expensive official path.

Beneficiary's subsidiary liability: unlimited liability and eternal debt

The responsibility of top management who resorted to one-day schemes or took out assets before bankruptcy - on the example of the Tatarstan practice. In the new blog for "BUSINESS Online" from the partners of ANP "Zenith" Yulia Zazdravnaya and Guzel Valeeva, you will learn that the world will never be the same: from June 2017, even after the end of bankruptcy, creditors can file claims against the actual owners guilty of the company's insolvency ...

A SOCIETY WITH UNLIMITED LIABILITY

Subsidiary liability is the liability of the controlling persons for the company's debts (in case of insufficient property of the latter). IN last years it is not perceived by entrepreneurs as something out of the ordinary, as tales or horror stories for the especially impressionable. Many people have a general idea of \u200b\u200bhow it works.

Of course, according to statistics, in most cases, controlling persons manage to avoid subsidiary liability. For example, in 2016, the Arbitration Court of the Republic of Tatarstan satisfied only 7 out of 24 applications for bringing to subsidiary liability (according to the data of a single federal resource for information on bankruptcies).

However, the bankruptcy legislation does not stand still. Serious amendments were made at the end of 2016, blocking many avenues for avoiding subsidiary liability.

The article will be useful to both creditors (who may discover new debt collection instruments) and debtors (including potential ones).

So, let's talk about the latest trends in legislation and practice in the application of subsidiary liability.

GROUNDS FOR SUBSIDIARY LIABILITY

Actually, there are two grounds for bringing to subsidiary liability in the bankruptcy law:

- non-filing (late filing) of a bankruptcy petition;

- the existence of a connection between the actions (inaction) of the controlling person and the bankruptcy of the company.

For a long time the provisions on subsidiary liability did not work precisely because of the difficulty of proving such a connection. But since 2013, a presumption of guilt has been introduced.

It is now assumed that the person in charge will be found guilty of the bankruptcy of the company in the following cases.

1. Damage has been caused to the property rights of creditors as a result of transactions made by this person (or upon approval by this person).
The following examples of debtors' actions are especially eloquent:

- work with one-day firms; for example, former heads of the Chelny company Fatiha were brought to subsidiary liability in the amount of more than 15 million rubles for the connection with one-day incidents (resolution of the AS PO of 11/22/16 on case No.A65-7420 / 2014);

- withdrawal of assets before bankruptcy; the head of another Chelny company Leks paid subsidiary liability in the amount of about 4 million rubles just for the withdrawal of assets (without payment from buyers) shortly before bankruptcy (resolution of the AS PO dated 04/07/2016 in case No. А65-17893 / 2014);

- transfer of activities to a clone company (we have already written about other negative consequences of such actions in the article);

2. Documents accounting and reports are missing or contain incomplete information about the property and obligations of the debtor, or distorted.

Currently, the failure of the debtor's manager to fulfill the obligation to transfer documents, seals, stamps (as well as distortion of data in documents) is one of the most common grounds for bringing to subsidiary liability.

For example, the head of the Kazan company "RusBauerStroy" was brought to subsidiary liability in the amount of over 148 million rubles (together with the founder) just for failure to fulfill this obligation (Resolution of the AS PO dated 05.17.2016 No.A65-6411 / 2011).

3. New. More than 50% of all claims arose as a result of an offense (tax, administrative, criminal) that was committed during the work of the director (according to applications for bringing to subsidiary liability filed after 09/01/2016).

It is noteworthy that the last rate has already started working.

Thus, in the case of Dataport Systems, the court of first instance did not find grounds for subsidiary liability (“due to the impossibility of making an unambiguous conclusion about the guilt of the founders”). However, the appeal considering the case on 13.10.2016 (that is, after the amendments entered into force) sent it for a new examination. The judges, among other things, noted that more than 50% (53.7 million out of 88 million rubles) of the claims relate to additional charges for an on-site tax audit (Resolution 9 of the AAC dated 1310.2016 in case No. А40-97946 / 2016).

Although in this particular case the application of the new norm, in our opinion, is illegal (since the application for bringing to subsidiary liability was filed before 09/01/2016), another thing is important - the tax authorities know about this norm and will not forget to use it.

Proving the absence of guilt in the above cases is the duty of the person brought to subsidiary liability.

WHO'S RISKING?

Contrary to popular belief, it is not only the head and the founder, information about which is contained in the Unified State Register of Legal Entities, that risk being brought to subsidiary liability.

There is a special concept in bankruptcy - “the person controlling the debtor”. This is a person who has or had before adoption By the Arbitration Court applications for declaring the debtor bankrupt the right to give instructions binding on the debtor or the ability to determine otherwise his actions. Including by forcing the head or members of the management bodies to them.

In other words, this is the one who actually ran the debtor company (even if not legally connected with the company) and could bring it to bankruptcy.

From 01.09.2016 the minimum period of influence of the controlling person has been increased from two to three years. At the same time, it is specified that controllers can be recognized as persons who influenced the company through kinship, inherent ties or through official position.

What conclusions follow from this?

Conclusion 1. The appointment of a nominee director / founder does not guarantee protection from subsidiary liability. After all, there is always a risk that, with the threat of its own responsibility, the face value will indicate the real owner of the business. Not the least role is played by the testimony of witnesses (obtained, for example, in the course of operational search activities).

Conclusion 2. Change officials the company allows to shift responsibility to a new leader from the moment of amendments to the Unified State Register of Legal Entities, but does not relieve real leaders / founders from responsibility for actions taken during their leadership.

Conclusion 3. The so-called "alternative" liquidation (when the debtor joins together with a dozen of the same companies to a one-day event) also does not save you from liability. In this case, creditors can use the simplified procedure for declaring the absent debtor bankrupt and bring former managers and owners of the company to subsidiary liability.

FORA FTS

The position of the tax authorities in bankruptcy cases is strengthening from year to year, and along with banks, the FTS is turning into a serious and dangerous opponent.

In addition to the introduced presumption of guilt in tax offenses, which we have already mentioned, since September 2016 tax authorities have an additional 6 months to enter bankruptcy. We are talking about a situation when a decision on the audit has not been made or has not entered into force (paragraph 4 of article 142 of the bankruptcy law). The innovation is intended to eradicate situations where accelerated bankruptcy is used to evade tax obligations.

Do not underestimate and huge informational resources tax authority, with virtually unlimited access to banking, tax, accounting and other information.

Internal manuals instruct inspectors to monitor the movement of assets, collect documents to challenge transactions, to bring to subsidiary liability (including information about the real beneficiaries and their assets) even at the stage of the on-site tax audit.

The legality of the use of materials obtained as part of tax control measures of the debtor or his counterparty is confirmed by judicial practice.

For example, in the case included in clause 13 of the review of the RF Armed Forces of 12/20/2016, the tax authorities managed to reject the inclusion of one of the debtor's creditors in the register. As evidence of the debt, the creditor presented to the court invoices for the delivery of goods and a reconciliation report signed by the debtor. However, in the accounting and tax accounting and reporting of the debtor there was no information about the transaction. In addition, there was no information about storage, storage conditions, transportation and acceptance by the debtor. The purpose of the acquisition of the disputed goods by the debtor was also unclear, based on the types of activities actually carried out by him. All this made it possible to convince the court that the purpose of the controversial deal was to create artificial debt.

In addition, the tax authority, like banks, initiates bankruptcy without obligatory "draining" the debt (that is, the inspection is sufficient for the decision of the tax authority that has entered into force).

All this requires taxpayers (especially in a pre-bankruptcy and bankruptcy state) to pay even more attention to their tax obligations.

Failure to submit an application for bankruptcy

If signs of insolvency appear, the manager must, within a month, apply to the Arbitration Court with a statement on declaring the company bankrupt.

Failure to comply with this obligation is another compelling reason for subsidiary liability. This is understandable: the composition is formal, the guilt of the leader in this case does not need to be proved.

Nevertheless, there are some nuances here:

1) on this basis, only the head of the debtor can be involved;

2) when determining the amount of subsidiary liability, only those claims that have arisen after the expiration of the time limit for filing a bankruptcy petition are taken into account.

For example, for tax payments, the moment the obligation arises is the moment of the end of the tax (reporting) period, and not the expiration of the payment deadline (definition of the RF Armed Forces of March 31, 2016 in case No. A50-4524 / 2013).

That is why determining the date when the obligation to file a bankruptcy petition arose is of fundamental importance. It should be noted that the presence of debt for more than three months with a positive balance sheet (when assets exceed liabilities) does not yet indicate insolvency and does not entail the obligation to file a bankruptcy petition. And this is not entirely clear. In that case, what then can entail this obligation?

At the same time, the Supreme Court orients the courts to evaluate the director's behavior through the prism of business customs and management practice standards, using the criteria of good faith and reasonableness.

In the case included in clause 26 of the RF Armed Forces review of 12/20/2016, challenging the decision of the tax authority (including due to the lack of uniformity in the application of tax legislation) made it possible to avoid subsidiary liability for untimely actions to initiate bankruptcy.

WILL NOT BE SENDED

We think that it is no secret to anyone that now you can simply "abandon" the company and in a year's time get the compulsory exclusion of the company from the Unified State Register of Legal Entities (no bankruptcy costs - beauty!). By the way, the FTS excludes a company from the Unified State Register of Legal Entities if no reporting is provided within 12 months and there are no movements in the current accounts.

In practice, there were cases when the tax authorities excluded even bankrupt companies from the Unified State Register of Legal Entities. The courts in this case were forced to close the bankruptcy case, leaving the creditors with nothing.

But at the end of 2016, amendments were adopted designed to close the loophole for avoiding debt through an accelerated exclusion from the Unified State Register of Legal Entities (not without the help of tax connections, very often).

In particular, from June 28, 2017, no exclusion from the Unified State Register of Legal Entities is allowed. legal entityif there is an application for declaring the debtor bankrupt accepted by the Arbitration Court. Provided that the proceedings are not terminated.

Moreover, the persons who control the company (forcibly excluded from the register) during last three yearswill be able to bring to subsidiary liability if the company has unfulfilled obligations due to the unfair and unreasonable actions of these controlling persons.

In other words, now you will have to wait not a year, but four.

"SUBSIDIARK" OUTSIDE BANKRUPTCY

In fact, the Supreme Court of the Russian Federation recognized the admissibility of collecting tax debts through subsidiary liability outside bankruptcy back in 2014 (review judicial practice The Supreme Court RF dated 04.06.2014 for the fourth quarter of 2013).

We are talking specifically about tax debts in the case when the manager did not file a bankruptcy petition on time, and the bankruptcy proceedings were not initiated or were terminated due to lack of funds for bankruptcy.

Enterprising tax authorities then go to court of general jurisdiction and bring the director to subsidiary liability. And such things are not uncommon.

Now this possibility (not only in relation to tax debts) is enshrined in law.

"SUBSIDIARKA" AFTER BANKRUPTCY

The “no company, no problem” approach will stop working as early as the summer of 2017.

So, from June 28, 2017, in the absence of other methods of debt collection at the expense of a legal entity (for example, upon completion of bankruptcy proceedings or termination of a bankruptcy case due to insufficient property to finance bankruptcy), creditors will be able to directly file claims against the debtor's controlling persons, guilty in the insolvency of a legal entity.

Creditors will be able to do this within three years from the date the debtor was declared bankrupt (missed by valid reasons term can be restored). But there are two conditions:

a) creditor ( authorized body) learned or should have learned about the existence of grounds for bringing the controlling person to subsidiary liability only after completion of the bankruptcy proceedings;

b) a similar claim for the same persons was not presented and was not considered in the framework of the bankruptcy case.

This application will be filed through a class action; the initiators of the statement will have to look for those who could join it. For this, the latter will have the right to familiarize himself with the materials of the bankruptcy case.

The practical implementation of this opportunity so far raises more questions than answers. However, the very adoption of such amendments is significant. As they say, this world will never be the same again.

YOUR MANAGER WILL NOT HELP

To begin with, it is worth noting that the debtor has lost the right to nominate an arbitration manager since January 2015. You can create an artificial debt and bring “your” creditors into bankruptcy, you say, but we have already mentioned the limitations of this approach.

In addition, the bankruptcy commissioner is not the only one who can apply for subsidiary liability. The Federal Tax Service, a bankruptcy creditor, an employee (including a former employee) can file an application for bringing controlling persons to subsidiary liability.

Moreover, the creditors' committee and individual creditors can remove the liquidator in the event of the latter's unfair performance of his duties - for example, for passivity in challenging the debtor's transactions.

And finally, the rule on disqualification of a manager for any repeated violation has been in force for a year (part 3.1 of article 14.13 of the Administrative Code). The first such decision was made in relation to an insolvency administrator from Tatarstan.

The reason for the manager's disqualification for six months was that he posted a declaration of bankruptcy four days late, did not indicate his insurance account number and mailing address, and did not publish another announcement at all. At the same time, the courts took into account that the manager had already been brought to justice under this article of the Administrative Code. The arguments of the manager about the insignificance and technical nature of the violations were not convinced by the courts (Resolution 11 of the ААС dated 06.09.2016 in case No. А65-7055 / 2016).

According to the Federal Tax Service, as of mid-February 2017, 12 arbitration managers have already been disqualified for a period of 6 months to a year.

ETERNAL DEBT

But bringing the controlling person to subsidiary liability is only half the battle. Now debt collection from a controlling person often ends with the fact that such claims are put up at an auction, where they are bought by persons affiliated with the debtor for a pittance, or even without auction at all.

For example, the meeting of creditors of the Chelny company RusKhimenergo made a decision to dispose of the subsidiary liability debt in the amount of over 3.6 million rubles for 15 thousand rubles (the “market” price according to the appraiser's report). But the liquidator and the Federal Tax Service provided the court with information about the possession of the controlling person of property, due to which the disputed debt can be collected ( vehicle, real estate). The forensic examination showed a completely different market value of the debt, and the court declared the creditors' decision invalid (resolution of the AC PO dated October 27, 2016 in case No. А65-6419 / 2014).

Under the new rules, the claims to the controlling person will be distributed proportionally among the creditors, indicating the share of each. Thus, creditors will receive independent rights.

The next aspect should not be overlooked. In the event that the subsidiary liability debt exceeds 500 thousand rubles and is not repaid within three months, creditors can apply for bankruptcy of the controlling person himself.

Within the framework of this procedure, it is possible to contest transactions for the alienation of property (including contracts of donation of property, marriage contracts) concluded three years before the filing of the bankruptcy petition. Moreover, a bill is now being discussed that would make it possible to sell even the debtor's only housing if its area exceeds the established norms.

But, probably, the most negative (and, as a rule, unexpected) for the person brought to subsidiary liability is that, according to clause 6 of Art. 213.28 of the Law "On Insolvency (Bankruptcy)", such a debt is not repaid if the bankruptcy property is insufficient. In other words, it is impossible to get rid of such a debt.

For the amount of the outstanding debt, the court issues a writ of execution, which the creditor has the right to present for repayment within three years, and if the bailiff returns the writ of execution due to lack of property, present it again within three years from the date of return. And so on ad infinitum.

As you can see, the legislator follows the path of protecting creditors. And the situation when bankruptcy is started only to write off accumulated debts should soon come to naught.

In such conditions, creditors should take an active position in bankruptcy cases, because there are more and more opportunities for real debt collection every day.

Advice to all companies - take care of proper accounting and safety of documents, stock up on evidence of the economic feasibility of the transactions being made. Do not neglect challenging the decisions of the tax authorities, because the Federal Tax Service of Russia is increasingly the initiator of bankruptcy and bringing to subsidiary liability. If there are signs of insolvency, do not delay filing for bankruptcy in court. Well, after the appointment of the bankruptcy commissioner, transfer according to the inventory all accounting documentation, printing and so on. And be sure to involve experienced professionals to protect your interests.

P. S. Write the topics that interest you in the comments.

Guzel Valeeva, Julia Zazdravnaya

One of the most serious problems of modern enforcement proceedings is the availability of a variety of ways to completely legally not pay a debt. No, this is not a postponement or an installment plan for the execution of a court decision. This phenomenon is called “alternative methods of liquidation” of legal entities. Dozens law firms in Moscow and throughout Russia they offer similar services (to be sure of this, you just need to type "alternative liquidation" in any search engine).

We know perfectly well what liquidation of a legal entity is. A legal entity can be liquidated in three cases:

Decision-making on liquidation by the founders;

Decision-making on liquidation by the court;

Declaration insolvent (bankrupt).

Moreover, if the value of the property of the legal entity being liquidated is insufficient to satisfy the claims of creditors, it can be liquidated only through bankruptcy procedures.

But the term "alternative liquidation" appeared in Russian reality relatively recently. There is a rather unsightly essence behind this decent facade.

So what is “alternative liquidation”? With the help of this term, it is now customary to denote the departure of a legal entity from liability to its creditors.

Society with limited liability - the most popular organizational and legal form in Russian Federation... There are a lot of reasons for this, ranging from ease of registration to ease of management. And it is LLCs that most often use "alternative methods" of liquidation.

Imagine a typical situation: an LLC owes its creditors, it obviously won't be able to pay off all its debts, but it doesn't want to give its property either. Proceed as follows:

1. Withdraw all assets from the company (fictitious sale and purchase transactions, other ways to withdraw assets);
2. Depending on ingenuity (and in a different order):

• change founders and directors,
• change the place of registration of the company (transfer the company to some remote region),
• change the name of the company,
• in the end, they announce their reorganization in the form of a takeover (less often a merger).

After the reorganization, the debtor legal entity disappears, it ceases to operate. All of his debts are transferred to another LLC in the order of universal succession. At the same time, in the process of reorganization, the deed of transfer indicating the debt is safely "lost".

That's it, the liquidation is complete. It is impossible to collect debts from such a company. There is no property, all assets were withdrawn before the reorganization. To establish succession, you will need time, during which the debtor can again change the name and reorganize again. Vicious circle.

How to fight?

This part of my post will be much shorter than the previous one for quite understandable reasons (if there were effective ways to combat this phenomenon, there could be no question of widespread such methods of evading responsibility). Within the framework of the current legislation, there are only a few ways to combat “alternative liquidation”:

Initiation of bankruptcy proceedings and bringing to subsidiary liability the head and founders of the debtor, challenging the debtor's transactions within the framework of the bankruptcy procedure (but the bankruptcy procedure is quite an expensive pleasure, and all the costs of carrying out the procedure in case of insufficient property of the debtor are borne by the applicant);

Recognition of the reorganization unlawful in court (even if it succeeds, the practical meaning of this method seems doubtful, since instead of one insolvent debtor we will get another insolvent debtor);

Bringing to criminal responsibility the head and founders of the debtor (In 99 cases out of a hundred, we will be refused to initiate a criminal case due to the fact that there are civil law relations);

Establishment of legal succession and subsequent collection of debt from the reorganized LLC (this method is hardly promising, since the new debtor does not have property, usually this is a fictitious LLC).

Almost the only effective way is bankruptcy, since challenging the debtor's transactions and bringing the director and founders to subsidiary liability are possible only within the framework of the bankruptcy procedure. But the initiation of bankruptcy proceedings seems appropriate only if there is a significant amount of debt. Fans of "alternative liquidation" try not to make mistakes, rarely when their debt to one creditor exceeds a million rubles.

Thus, it remains only to advise conscientious entrepreneurs to carefully choose counterparties and always remember that on russian market “Societies with unlimited irresponsibility” work quite legally.

Relatively recently, such a concept as “ alternative liquidation».

This concept denotes the termination of the company's activities formally, conditionally legal departure of a legal entity from obligations to creditors. Consider ways of alternative liquidation and their consequences.

The first way is "reorganization". In case of reorganization through merger or acquisition, the company will be struck off from the Unified State Register of Legal Entities, but as a result, a legal successor will appear. After the reorganization, all the obligations of the firm, including those not fulfilled and not revealed before, are transferred to the newly formed legal entity.

For example, an LLC has large debts, and cannot pay off all creditors, but it does not want to give its own. The owner of the firm first takes out all assets, usually through fictitious transactions. Then the founders and directors, the place of registration of the organization and the name are changed. After these machinations, a reorganization is announced in the form of a takeover, and sometimes a merger.

As a result, the debtor legal entity ceases to operate and disappears. All his duties are transferred to another organization. As a result of all this paperwork, debt confirmation documents disappear. Alternative liquidation completed successfully.

Despite this, the disadvantage of alternative liquidation is that the legal entity remains. And there is a high probability of verification of the assignee. Verification of the legal successor also means an audit of the activities of the predecessor company. Who will be responsible for her work? Of course, the one who controlled or owned it before the "reorganization". Consequently, the former management and owners can be brought to criminal and subsidiary liability.

The second way is to change members and leadership, actually meaning its sale. The company will simply be re-registered to a third party. The renewed company has a new extract from state register and can fully function. The cost of such services depends on how problematic the organization is and how active the regulatory authorities will show interest in it.

After re-registration, the company continues to operate, so third parties can make claims against it, try to collect debts, etc. However, the founders are not responsible for the obligations of the organization, except in the case. If the bankruptcy of a legal entity is caused by the actions of the owners, they may be assigned subsidiary liability for the obligations of the legal entity (clause 3 of article 56 of the Civil Code of the Russian Federation). And also, in the event of any claims on the "old cases", the new organization will continue to function, and the proceedings will be conducted with the previous owners and management.

The third way is to stop using the company. In accordance with Art. 64.2 of the Civil Code of the Russian Federation and Art. 21.1 and clauses 7 - 8 of Art. 22 ФЗ "О state registration legal entities and individual entrepreneurs”, The procedure for excluding an inactive legal entity from the Unified State Register of Legal Entities means that the firm has actually ceased its activities.

The decision to exclude from the Unified State Register of Legal Entities can be made in the presence of the following circumstances at the same time: 1) the legal entity has not submitted tax reports for the last 12 months; 2) did not carry out transactions on at least one of their accounts. If the company has several accounts, then there should be no transactions on any of them (clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 17, 2006 N 100).

In order to get rid of the company, the owner only needs to withdraw assets in advance, dismiss all personnel and wait about 1.5 - 2 years. The registrar, having made a decision to exclude from the Unified State Register of Legal Entities, informs the owner of the company, creditors and other interested parties about this, indicating the address and is published in the Bulletin of State Registration. Interested parties can submit an application within 3 months from the date of publication of the registrar's decision in order to block the administrative procedure for the termination of the counterparty. (Resolution of the FAS ZSO dated 20.02.2013 in case N A81-921 / 2012). The risk of the impossibility of collecting debts as a result of the exclusion of the company from the Unified State Register of Legal Entities lies with its creditor (Resolution of the FAS ZSO dated 06.08.2014 in case No. А03-13327 / 2013). Therefore, we can say that if creditors did not have time to declare themselves after the debtor was excluded from the Unified State Register of Legal Entities, then they are not entitled to recognize the debt (Letters of the Ministry of Finance of Russia dated 11.12.2012 N 03-03-06 / 1/649 and dated 08.11.2012 N 03 -03-06 / 1/577). But interested persons can appeal against the decision to exclude from the Unified State Register of Legal Entities within one year from the day when they learned or should have learned about the violation of their rights.

Each of the alternative liquidation methods can attract the attention of FTS employees and cause a tax audit. The result of such inspections may be the emergence of civil claims of creditors, the need to pay fines and fines for administrative and tax penalties.

However, it is not uncommon to initiate criminal cases against former leaders. For example, under article 177 of the Criminal Code of the Russian Federation for malicious evasion from repayment accounts payable, under Article 199 of the Criminal Code of the Russian Federation for tax evasion or under Article 173 of the Criminal Code of the Russian Federation for illegal business. Besides, alternative liquidation may fall under such a crimeas st. 173.1 of the Criminal Code of the Russian Federation for the formation (creation, reorganization) of a legal entity through dummies and Art. 173.2 of the Criminal Code of the Russian Federation provides for criminal liability for illegal use of documents aimed at the formation (creation, reorganization) of a front legal entity.

Consequently, it can be said that when companies are fictitiously closed by merger / merger or simply re-registration to a third party, the owner is liable for non-fulfillment of obligations to creditors, non-payment of taxes, and even criminal liability.

According to S. Kleimenov, alternative liquidation is a lottery or even fraud, in which a legal entity is not liquidated, and the likelihood of negative consequences increases. However, the choice is up to the owner of a formal liquidation of the company or an alternative liquidation. Liquidation by "white" methods in accordance with the legislation is a long and costly procedure, but it guarantees peace of mind for the future.

Alternative liquidation of an LLC is a procedure in which the liquidation of a legal entity takes place with a minimum of costs and tax audits. This technology is quite in demand, as it reduces the time for all operations. It does not involve significant overhead as is the standard procedure. It is not required to go through many checks by state authorities, which is important if there is a debt from a legal entity and other controversial issues.

There are two main ways of alternative abolition: through a change of CEO and reorganization. In the second case, the company ceases to exist, while with the change of key persons, it can continue to work.

Liquidation through the change of the general director and founders of the LLC: features of the procedure

This alternative LLC liquidation is a procedure in which the company is sold to third parties. New owner can independently resolve the issue with its future fate:

• Complete the activities of the company;
• Change her specialization and continue working;
• Continue the activity without making any changes.

After changes have been made regarding the composition of the legal entity, old owner ceases to be responsible for the current activities of the company.

Consider the advantages of this option:

• It will take only 10-25 days to complete the procedure;
• This is one of the most inexpensive abolition methods;
• The founders of the LLC take minimal part in the process.

However, it also has a lot of disadvantages:

• The information remains in the Unified State Register of Legal Entities, and therefore the sword of Damocles continues to hang over the old owner in the form of criminal liability for previous operations within the company;
• Increased risk of subsidiary liability. Information on the concept of subsidiary liability;
• If a sale and purchase transaction is drawn up, a large package of documents will be required;
• To complete a transaction with a notary, a person is expected to pay high fees.

If violations were revealed during the previous stages of the company's activities, then even after the change of owners and management of the company, the responsibility will be borne by the past owners.

Reorganization of a legal entity

The reorganization of a legal entity can be carried out in various ways. However, in any case, the procedure presupposes the termination of the company's existence in its current format. It becomes the property of the receiving company. The reorganization is carried out in two ways:

• Merge... Assumes the abolition of the previous legal entity. All rights to the company are transferred to the new LLC. To do this, you will need to register a new person in the Unified State Register of Legal Entities. The procedure will take about a week.
  Before the end of the procedure, the liquidated company is required to go through certain legislative processes. These include notification of creditors about this transaction. It is necessary to send them special notifications confirming their receipt, as well as publish the news of the abolition in the "Bulletin of State Registration".
  A merger is carried out, after which a certificate of termination of the legal entity is provided. A certificate of registration of the assignee is also issued. All tax liabilities of the LLC must be paid by the new owners.
• Accession... It looks like a merger, but the mechanisms differ in the following way - when merging, all companies complete their work except for the one to which the rights to all the other abolished LLCs will be transferred.
  Among the advantages of the event, it can be noted that it is not required to receive a certificate of the absence of debt from the FIU. This simplifies the process, makes it faster. After the procedure has been completed, you can receive a certificate of its confirmation, as well as the termination of the activities of other companies.

The merger involves the abolition of the former LLC.

Consider the benefits of reorganizing:

• The legal entity is excluded from the Unified State Register of Legal Entities;
• It is not required to collect a lot of documents;
• The event will take about three months.

Among the disadvantages of the procedure are:

• If creditors submit their claims, then it will be impossible to reorganize. First you need to fulfill all the necessary requirements;
• Increased risk of subsidiary liability of former owners.

These are the most common methods and are an alternative to the standard procedure. Their choice depends on the preferred timing of the event, as well as on whether the organization has arrears.

When are alternative methods the best option for an enterprise?

The standard abolition process is fraught with trips to various instances, the collection of a large package of documents. List of documents for LLC liquidation. You will need to obtain all the necessary permits, extracts. This is a lengthy process, especially if the liquidation is carried out through bankruptcy. The longer the process takes, the more expenses it will require. You will have to pay not only fees, but also pay salaries to the current state.

An alternative LLC liquidation will be appropriate in the following cases:

• You want to save time;
• Additional costs must be avoided;
• The company has debts;
• The organization has tax violations.

In all these cases, the methods will make the whole process easier and more economical.

The easiest liquidation method is to change the CEO and founders.

Potential risks

If alternative means are used, the organization is likely to face increased scrutiny. They are carried out in order to prevent fraud and tax evasion.

When a legal entity is liquidated, the following risks are possible:

1. Criminal liability... This occurs when the change of leadership was carried out with the participation of dummies. Liability risks are greatly increased if the transaction was carried out solely for the sake of termination;
2. Face back to the previous owner... Done if checks have been made. If the new organization, to which the rights to the LLC are transferred, does not perform any activity, this may become the object of attention of the tax authorities. The company is returned to the previous founders. This leads to pointless costs and the need to conduct a second liquidation event;
3. Intentional recognition of bankruptcy... A similar result may occur as a result of audits for the legal capacity of a new company that was formed as a result of reorganization. Risks increase if there are uncovered obligations.

You can significantly reduce the likelihood of negative scenarios. For this, the LLC should not arouse any suspicion. She should not have debts, controversial obligations. how to close an LLC with debts. it is easier with both standard and alternative procedures. Therefore, if the company has violations, it is better to eliminate them first. If this is not done, all liquidation actions can be wasted.

In any case, the past owners are responsible for violations committed in the course of past activities.
As a result, they will have to spend money not only on the liquidation itself, but also on the repayment of debts, a repeated event for the abolition.

When would alternative methods be appropriate? It is optimal to use them when the organization has covered all its debts and paid taxes. It may happen that the procedure is carried out without any consequences. However, the likelihood of this is very low, since if the LLC has problems, it will have to go through various checks.

Closing a firm by alternative means looks tempting only at first glance. Here you need the help of a competent lawyer, and you yourself need to be prepared, at least theoretically. Here is the opinion of experts on this topic:

Alternative options for abolishing a legal entity can be applied. However, this is only recommended in order to reduce the time for the event, as well as the costs. In this way, it is difficult to avoid paying debts and paying taxes. Most likely, the founders will suffer double costs and problems if they decide that this is a way out of the current situation. The simplest method of liquidation is to change the CEO and founders. This process takes a minimum of time. It does not require a lot of documentation and costs are reduced. A good option reorganization is also considered.