Ifs received the right to close companies without trial. Check the information about the company in the state register before it is excluded from there. On September 1, the tax authorities may close the company

A company may terminate its activities at the initiative of the tax authorities, both in court and out of court. From September 1, 2017, tax authorities will have another basis for closing a company without resorting to litigation.

Inactive legal entities are subject to exclusion from the Unified State Register of Legal Entities in the manner established by Article 64.2 of the Civil Code of the Russian Federation and Federal Law No. 129-FZ of 08.08.2001 “On State Registration of Legal Entities and Individual Entrepreneurs”.

Today, tax authorities can liquidate a company if the conditions contained in paragraph 1 of Article 21.1 of Law No. 129-FZ are simultaneously met:

the company, during the last twelve months preceding the moment the tax authority made a decision on liquidation, did not submit reporting documents required by the legislation of the Russian Federation on taxes and fees,

the company did not carry out transactions on at least one bank account.

As the senior judges noted, the provisions of clause 2 of Article 21.1 of Law No. 129-FZ are aimed at ensuring the reliability of the information contained in the Unified State Register of Legal Entities, and the totality of actions of tax officials to exclude a legal entity from the Unified State Register of Legal Entities is recognition on the part of the state of public legal interest in identifying the actual inactive legal entities in the manner prescribed by law, taking into account the rights and legitimate interests of interested parties (Resolution of the Constitutional Court of the Russian Federation of May 18, 2015 No. 10-P).

At the same time, tax authorities must follow a certain procedure for liquidating the company, provided for in clauses 3 and 4 of Art. 21.1 of Law No. 129-FZ:

the decision on the upcoming exclusion of the company must be published in press outlets that publish data on state registration of a legal entity within three days from the date of such a decision (for example, in the journal “Bulletin of State Registration”);

the same journal should publish information about the procedure and deadlines for sending applications from all interested parties (the company itself and its creditors, as well as other persons whose rights and legitimate interests are affected). The journal publishes the address to which such statements can be sent. The deadline for submitting the application is no later than three months from the date of publication of the decision on the upcoming exclusion of the company.

If within three months any statements about the impossibility of excluding the company from the Unified State Register of Legal Entities have not been received by the tax authority, then the courts confirm the legality of the tax authority’s decision to terminate the activities of the legal entity (Resolution of the AS of the West Siberian District dated July 14, 2017 No. A81-5340 /2016, Far Eastern District dated June 30, 2017, No. F03-2501/2017, Volga-Vyatka District dated June 9, 2017, No. A11-6855/2016).

Considering disputes about the illegal exclusion of a company from the Unified State Register of Legal Entities, the courts, with reference to the Resolution of the Constitutional Court of the Russian Federation dated December 6, 2011 No. 26-P, note that the absence of cash flows through the company’s current account and the failure to submit tax reports within 12 months in the presence of documentary evidence, indicating that the organization is actually conducting business activities, carrying out financial and economic operations, are not grounds for excluding this organization from the Unified State Register of Legal Entities.

For example

The fact that the fulfillment of obligations under the loan agreement was carried out at the expense of a third party (and not the company itself) does not indicate that the company has ceased its activities, according to which the creditor is obliged to accept the performance performed by a third party for the debtor (Article 313 of the Civil Code of the Russian Federation).

As the Constitutional Court of the Russian Federation indicated in its resolution dated May 18, 2015 No. 10-P, in its rulings dated January 17, 2012 No. 143-O-O and dated June 17, 2013 No. 994-O, such legal regulation is aimed at ensuring the reliability of the information contained in the Unified State Register of Legal Entities (including the termination of the activities of a legal entity), maintaining trust in this information on the part of third parties, preventing the unfair use of actually inactive legal entities and thereby ensuring the stability of civil turnover.

And since the company has an outstanding debt to the bank (under the loan agreement), the court came to the conclusion that the decision to exclude it from the Unified State Register of Legal Entities as an inactive legal entity in the presence of unfulfilled obligations does not comply with the requirements of Article 21.1 of Law No. 129-FZ, since obviously violates the rights of his creditor (Resolution of the Moscow District Court of July 14, 2017 No. A40-229308/15).

New grounds for liquidation of companies

From September 1, 2017, tax authorities will have more grounds for extrajudicial liquidation of a company. This right was granted to tax authorities by Federal Law No. 488-FZ of December 28, 2016 “On Amendments to Certain Legislative Acts of the Russian Federation.”

From September 1, 2017, the extrajudicial procedure for excluding a company from the Unified State Register of Legal Entities will be applied in the following cases (subparagraphs d) clause 2 of Law No. 488-FZ):

the impossibility of liquidating the company due to the lack of funds for the expenses necessary for its liquidation and the impossibility of assigning these expenses to its founders (participants);

the presence in the Unified State Register of Legal Entities of information in respect of which an entry was made about their unreliability, for more than six months from the date of making such an entry.

The rule regarding the procedure for filing an application with the tax inspectorate by an inactive legal entity, creditors and other persons whose rights and interests are affected in connection with the exclusion of a legal entity from the Unified State Register of Legal Entities has also been clarified.

That is, if a company or interested parties are against its exclusion from the Unified State Register of Legal Entities, then within three months from the date of publication of the decision to exclude the company from the register, an application must be sent to the tax office. The form of this application must be approved by the tax authorities.

Let us recall that from January 1, 2016, tax authorities have the right to make so-called “black marks” - a record of the unreliability of information about a legal entity contained in the Unified State Register of Legal Entities.

Such an entry about the unreliability of the information contained about a legal entity is made in the Unified State Register of Legal Entities on the basis of verification activities carried out by the tax authority, if, based on their results, the unreliability of the information contained in it about the legal entity is established.

As evidenced by the statistics provided on the tax authorities’ website, in 2016 there were almost 781,000 fewer companies in the Unified State Register of Legal Entities than in 2015. 84% of them were excluded from the register by decision of the tax authorities themselves (they have not provided reports for more than a year, there is no movement on accounts).

If tax authorities discover fictitious information about a company, a notification is sent to such company within 30 calendar days to correct the information in the Unified State Register of Legal Entities or to confirm with documents the accuracy of the information contained in the register. Otherwise, the tax authorities will make an entry in the register about the unreliability of the information.

And taking into account the fact that from September 1, 2017, tax authorities will exclude such companies from the register, before this date, companies that have an entry in the register about unreliability must submit to the tax office a package of documents confirming the accuracy of the information.

Companies and their counterparties can use the addresses to check the Unified State Register of Legal Entities:

Tax officials have the right to close companies with false data in the Unified State Register of Legal Entities without trial. This right is given to tax authorities by Federal Law No. 488-FZ.

Who will be excluded from the Unified State Register of Legal Entities

First of all, inspectors will exclude from the Unified State Register of Legal Entities companies in respect of which two conditions are met:

tax officials made a note in the Unified State Register of Legal Entities about false information;

The company has not corrected data on the address, director or founder for six months, which the Federal Tax Service considered fictitious

The company has inaccurate information from the Unified State Register of Legal Entities. What problems will she have?

1. Inspectors will close the company without trial. Starting September 1, tax officials will liquidate a company if a record of false data has been posted for more than six months.
2. There will be problems with the bank. Inspectors will send incorrect data to the bank within 10 days (clause 4 of the letter of the Federal Tax Service of Russia dated June 25, 2014 No. SA-4-14/12088, decision of the Moscow Regional Arbitration Court in the case dated April 10, 2017 No. A4178724/16). Based on this information, banks will send information to the financial monitoring service (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 27, 2010 No. 1307/10).
3. Tax officials will refuse to change any data in the Unified State Register of Legal Entities. The company will not be able to change data about its activities. For example, the Federal Tax Service will not accept an application to change the director until the company corrects the incorrect address or proves that the tax authorities made a mistake (subparagraph “r”, paragraph 1, article 23 of Law No. 129-FZ).
4. The director will be fined for errors in the Unified State Register of Legal Entities. The manager will be fined 10,000 rubles. for the fact that he entered incorrect data into the Unified State Register of Legal Entities (part 4 of article 14.25 of the Code of Administrative Offenses of the Russian Federation).
5. Contractors will stop working with the company. Buyers will pay attention to the mark when entering into new contracts. If the register contains marks of unreliability, most likely, counterparties will refuse to cooperate.
6. Tax authorities will consider the company an unscrupulous payer. They will call more people in for questioning, demand explanations, and come with inspections.

From September 1, tax authorities will have the right to close companies with mass addresses without trial. The Federal Tax Service has been given this right.

Why will the company close down?

If inspectors discover fictitious data, they will first send a notification and demand that within 30 calendar days you correct the information in the Unified State Register of Legal Entities or confirm with documents that everything in the register is correct. An approximate example of a notification is shown in the picture.

Inspectors identify false addresses during inspections and during daily work. There are several signs by which tax authorities conclude that the address is fictitious:

1. The organization does not receive letters from the Federal Tax Service; they are returned to the tax office.
2. The company address does not match the classifier. For example, a company entered building 1 in the register, but in the classifier there is only building 2. Or it indicated the house number 47a. But the classifier only lists 47v, etc.
3. The building at the company's address cannot be used: the house is destroyed, demolished, or there is a military unit located there.
4. The address is massive, it is used by 50 or more companies.
5. The company is registered in a residential premises.
6. The company is located in a shopping center, but has not entered the office or premises number into the register.

What companies are facing right now

Readers of the magazine “Simplified” are faced with the following problem. They checked using a special service of the Federal Tax Service " Addresses indicated during state registration as the location of several legal entities"and found out that their company is under threat of closure on September 1. The directors sent explanations to their Federal Tax Service. But inspectors ignore these letters.

Here are the letters to the editor:

№ 1. In the magazine "Simplified" No. 7 July 17 article "". Question: The company is active, pays taxes, etc., but it was entered into the database with “unreliable information” at the address. The inspectorate ignores our letters, what is the procedure for excluding an existing legal entity without a court decision only on the basis of “inaccurate address” from September 1, and is it possible to submit an inspection to the arbitration court upon the start of exclusion from the Unified State Register of Legal Entities?

№ 2. What to do if all confirmations of authenticity have been submitted, but the tax office really ignores it. Twice submitted tax documents. Nothing happens for more than a month. Where to call or write? Complain?

№ 3. The agency in general and our residents in particular are registered at a mass address. According to the letter of the Federal Tax Service No. GD-4-14/14127, a sign may be applied to us if: “the address of a legal entity indicated in the Unified State Register of Legal Entities is the address of more than 50 legal entities. What to do?

Created: 08/17/2017 00:00 Published: 08/17/2017 00:00 From September 1, 2017, tax authorities will delete from, or, in other words, forcefully liquidate, companies that do not correct false information about themselves contained in the register within six months (Federal Law dated December 28, 2016 No. 488-FZ).

Unreliability of information in the Unified State Register of Legal Entities - a “black mark” from the Federal Tax Service

Tax officials began to enter notes on unreliable information into the unified state register in 2016 (see Federal Law No. 67-FZ dated March 30, 20015). Throughout the past year, inspectors have been “testing” the innovation - conducting inspections of addresses and studying how effective the new measure is in relation to companies. In 2017, such inspections became widespread. If it is discovered that the company is not located at the address declared in the Unified State Register of Legal Entities, the tax authorities send a notification demanding that the necessary changes be made to the register. 30 calendar days are allotted for this. If the company does not do this, a note “inaccurate information in the Unified State Register of Legal Entities about the address” will appear in the register.

What does it mean?

Tax authorities will liquidate companies without a court decision

Additional grounds for exclusion from the Unified State Register of Legal Entities without a corresponding court decision have appeared. Amendments have been made to Law No. 129-FZ on state registration of legal entities that will allow tax authorities to delete companies from the Unified State Register of Legal Entities without a court decision. This applies to those companies for which there is a record of unreliable information in the Unified State Register of Legal Entities, and more than 6 months have passed since such information was entered.

Most often, information about the location address (80%) and company participants is unreliable.

Data verification is not yet regulated in detail. But, as the practice of recent months shows, when checking the address indicated in the Unified State Register of Legal Entities, tax officials try to contact and obtain explanations from the owner of the premises, request certificates about the number of tenants, and even conduct inspections of offices and other real estate objects.

Exclusion of an LLC from the Unified State Register of Legal Entities: how the Federal Tax Service “tested” amendments to Federal Law 129-FZ

The tax service began to prepare the groundwork for the new law in advance. Back in 2016, the Federal Tax Service instructed lower-level inspectorates to check companies that have “bad” signs (see letter dated August 3, 2016 No. GD-4-14/14127):

a person who has the right to act on behalf of a legal entity without a power of attorney, including a management organization, acts as such in more than 50 companies;

participants of a legal entity are such in more than 50 companies;

the address of the legal entity indicated in the Unified State Register of Legal Entities is the address of more than 50 companies;

availability of information about the entry into force of a resolution in a case of an administrative offense on the disqualification of a person who has the right to act on behalf of a legal entity without a power of attorney (including on behalf of the management organization). However, if the period of disqualification has expired, the inspection will not be carried out;

availability of information about the death of a person who has the right to act on behalf of a legal entity without a power of attorney.

And now what i can do?

Make changes to the Unified State Register of Legal Entities, check counterparties

The first thing you need to do is to obtain and carefully study an extract from the Unified State Register of Legal Entities for your company to make sure that all the information indicated in it is complete, accurate, and there are no marks of unreliability of the information. In this case, the legal entity will not be excluded from the Unified State Register of Legal Entities.

Situations may be different, and depending on them, you can give several basic recommendations that will help you avoid being excluded from the Unified State Register of Legal Entities in 2017.

1. The company is not located at the address specified in the Unified State Register of Legal Entities

Make changes to the Unified State Register of Legal Entities, that is, register at the actual address, or arrange a company workplace at the address indicated in the Unified State Register of Legal Entities.

Conclude an agreement for forwarding correspondence with the post office.

Clarify the address if the register contains an incomplete address (tax authorities consider the address unreliable when, for example, it does not contain an office number in a business center).

2. The Federal Tax Service sent a “letter of happiness”, although the actual address of the company coincides with the legal one

Be sure to write a letter to the inspectorate. Tax officers are people too; they can make a mistake, for example, by not finding a company during an inspection, and require corrections to be made to the Unified State Register of Legal Entities. Do not ignore the tax letter and send an explanation to the Federal Tax Service with a copy attached. This will help avoid exclusion of the organization from the Unified State Register of Legal Entities.

3. Check counterparties

Make sure that in the statements for your counterparties there is no entry about the unreliability of information in the Unified State Register of Legal Entities. If the tax authorities have set it, evaluate how safe it is to continue working with these companies.

How to find out if your company has a record of unreliable information in the Unified State Register of Legal Entities?

Information about the presence in the Unified State Register of Legal Entities of a record about the unreliability of information in relation to a particular company can be obtained using the electronic service on the Federal Tax Service website “Providing information from the Unified State Register of Legal Entities in the form of an electronic document”, as well as in the services “Information on state registration of legal entities...” (see. section “Business risks: check yourself and your counterparty”) and “Personal account of a legal entity.”

What if you do nothing?

The company may be excluded from the Unified State Register of Legal Entities for false information

The consequences of unreliable information in the Unified State Register of Legal Entities and the absence of any actions to eliminate inaccuracies can be very dire.

If the Unified State Register of Legal Entities contains inaccurate data, and the company’s management does not take any action to correct them, the tax authorities initiate a procedure for excluding the company from the Unified State Register of Legal Entities.

A note about the unreliability of information in the Unified State Register of Legal Entities harms the reputation of the company - no one will want to start or continue a relationship with a partner whom the Federal Tax Service classifies as a dangerous counterparty.

The director left the company, but not the Unified State Register of Legal Entities...

It happens that the general manager leaves the company, but the corresponding changes are not made to the Unified State Register of Legal Entities - he continues to be listed as a director. At the same time, the participants do not participate in the affairs of the company, reports are not prepared or submitted, and there is no movement on the accounts. A year or later, inactive legal entities are excluded from the Unified State Register of Legal Entities. For the general director, who has not been involved in the affairs of such a company for a long time, but is still listed as its head in the register of legal entities, the consequences are quite unpleasant: for 3 years from the moment the company is excluded from the Unified State Register of Legal Entities, he will not be able to be the founder or head of any other companies.

Be careful, this magazine material is current as of July 28, 2017

From September 1, the Federal Tax Service will begin to forcibly liquidate companies that do not have time to correct in the Unified State Register of Legal Entities information about the address, founders or director, which the tax authorities have recognized as unreliable.

This right is given to them by one of the norms of Federal Law No. 488-FZ of December 28, 2016, which comes into force exactly from this date.

We are talking about paragraph 5 of Article 21.1 of Law No. 488, according to which “automatic” exclusion from the Unified State Register of Legal Entities applies, in particular, in the following cases:

a) the impossibility of liquidating a legal entity due to the lack of funds for the expenses necessary for its liquidation and the impossibility of assigning these expenses to its founders (participants);

b) the presence in the unified state register of legal entities of information in respect of which an entry was made about their unreliability, for more than six months from the date of making such an entry.

"Wrong" address

The notorious “unreliability of information” is, to a large extent, the “registration” of a company at the mass registration address.

The main signs of a “fictitious” address:

the address is used by more than 50 companies

the company is registered in a residential premises

letters sent by the Federal Tax Service to the company are returned to the tax office;

The company address does not match the classifier. For example, a company has entered building 2 in the register, but only building 1 is in the classifier.

the building at the company's address cannot be used: the house is destroyed, is under reconstruction, demolished, or there is a military unit there.

the company is located in a shopping center, but has not entered the office or premises number into the register.

You may not have time to “get better”

Formally, if fictitious data is discovered, inspectors must first send the company a corresponding notification and demand that they correct the situation within 30 calendar days by indicating the true address of their location. But given various factors, including the workload of inspectors and general confusion, this may not happen. The situation is aggravated by the fact that companies with false information can be entered into the tax database by mistake.

Don’t be lazy to check yourself using the service “Addresses specified during state registration as the location of several legal entities” (https://service.nalog.ru/addrfind.do, information is updated once a week). If you find yourself in it, know that your company is under threat of closure.

Writing a petition to the Federal Tax Service stating that your company is operating and pays taxes (with the attachment of various documents confirming these facts) is advisable, but does not guarantee the proper result. Practice shows that businessmen's excuses can simply be ignored. So you should be more persistent and not limit yourself to just one letter.

Information about legal entities: “unprecedented secrecy”?

It does not add to optimism that the above-mentioned service of the Federal Tax Service does not work without failures, so that companies have the risk of simply not being seen there if they are actually present in it. In this regard, great hopes were placed on a new service called “Transparent Business” (https://pb.nalog.ru/index.html), which the tax authorities began to fill out a long time ago, and the tax authorities intended to become fully operational on July 25th. It was assumed that from this date “the degree of openness of information about legal entities will increase unprecedentedly,” since information that previously represented a tax secret and ceased to be so due to amendments to Article 102 of the Tax Code of the Russian Federation last year will be posted on the server.

Note!

From September 1, tax authorities will liquidate without trial companies that do not correct false information about the address, founders or director in the Unified State Register of Legal Entities for six months.

According to the order of the Federal Tax Service dated December 29, 2016 No. ММВ-7-14/729@, the data specified in paragraph 1.1 of Article 102 of the Tax Code of the Russian Federation should appear on the official website of the service. This list includes data on the addresses of companies, on all taxes and contributions paid, as well as the amounts of arrears on them and arrears on penalties and fines, tax offenses and penalties for their commission, special tax regimes and taxpayer participation in consolidated groups, average headcount employees, as well as annual income and expenses according to financial statements.

Data sets must include information for each specific organization, with the exception of those related to state secrets. The primary goal of their opening is “to provide taxpayers with complete and reliable information for analyzing the financial and economic activities of counterparties.”

Almost all the data was subject to publication from July 25, and the rest from February 25, 2018. However, by July 25, company reporting in the open information section on the website had not appeared, and the new resource of the Federal Tax Service “Transparent Business” on which, in particular, one could find up-to-date information about the address of registration, as well as the number of other organizations located at this address, after working in test mode for a couple of days, it simply “collapsed”, is currently unavailable, and, apparently, will not open again in full format any time soon.

At least on the portal of draft regulations www. regulation.gov.ru d a draft order of the Federal Tax Service of Russia has appeared on postponing the start of publication of data on companies from July 2017 to June 2018.

How many companies will have sunk into obscurity by that time, expelled from the Unified State Register of Legal Entities, and how many will remain on the register, one can only guess. Despite the fact that there are already over 20,000 “candidates for exclusion” in the Moscow region alone.

Is everyone going to court?

What about the court? After all, this is the last opportunity to prove the groundlessness of exclusion from the Unified State Register of Legal Entities. And businessmen have not yet been deprived of this opportunity. But it is worth remembering that ministers are not too loyal to “targeted” violations.”

The company was not allowed to “settle” on 1 m²

From the registration application it follows that each of the seven companies operating at the specified address accounts for less than 1 sq. m. m area. In this regard, registration of the eighth was refused. The Volga District Autonomous District found such actions of tax officials to be lawful, which they reported in resolution No. A65-9805/2016 dated 04/05/17.

When inspecting the building indicated in the application, Kazan tax authorities determined that the address of “mass” registration was indicated as the location of the newly formed LLC “Lupin”. Notices and summonses sent by tax authorities to taxpayers registered at the specified address are not executed. Real communication with organizations is impossible.

There is no activity in the disputed premises, the premises are empty, no organizations are located, the door is locked, there are no officials or legal representatives of legal entities. The fact that there are no organizations is confirmed by interviewing employees of neighboring organizations and witnesses.

It also turned out that the companies were not only not actually located at the specified address, but also could not be there at the same time according to the laws of physics, since otherwise all of their employees (not illusionists or wizards) would have to be located on one square meter of space. But even if they succeeded, such “accuracy” is contrary to SanPin standards. In general, registration of “Lupin” was denied.

The court agreed with the inspection's decision. A necessary condition for state registration is not only the submission of a complete list of documents, but also the accuracy of the declared information, including that to be entered into the Unified State Register of Legal Entities. But in this case, with reliability, everything was quite problematic.

Since the application contains false information, the inspectorate rightfully refused to register the legal entity on the basis of subparagraph “p” of paragraph 1 of Article 23 of the Federal Law of 08.08.11 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs,” the judges concluded.

Lack of office number is a reason for refusal of registration

The founder of a legal entity who did not indicate the office number in the application on form No. P11001, in case of refusal of registration, has only himself to blame. This conclusion suggests itself from the resolution of the AS of the West Siberian District dated March 10, 2017 No. A45-13252/2016.

The founder of the company submitted to the inspectorate an application for state registration of a legal entity in form P11001, but was refused on the grounds that column 2.9 of the application was not filled out properly - the application did not indicate the floor on which the organization is located and the room number.

Making a decision in favor of the tax authorities, the court pointed out the following. The address of a legal entity, including floor and office number, is a mandatory detail of the registration application. In the case under consideration, the application on form P11001 only indicates the street and house number. This building contains many administrative premises, which belong to different owners. In this regard, it is impossible to accurately identify the address of a legal entity.

The judges referred to paragraph 1 of Article 23 of the Federal Law of 08.08.01 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”. It states that filing an application with false information should be considered as a failure to submit to the registration authority a document containing the necessary information. And this is the basis for refusal to register a legal entity.

The building is not being renovated

Tax officials have every right to refuse registration of a legal entity in a building that is under reconstruction. This conclusion was reached by the Moscow District Court in its resolution dated May 26, 2017 No. A40-105972/2016

The founder of the organization submitted an application to the inspectorate for state registration of a legal entity. But the registration authority refused. The reason is that the building at the address indicated in the application is under reconstruction and, therefore, cannot be used for business. Providing false information is grounds for refusal to register a legal entity (subparagraph “r”, paragraph 1, article 23 of the Federal Law of 08.08.01 No. 129-FZ).

In court, the founder demanded that the refusal be declared unlawful on the grounds that the address information is contained in the Federal Information and Address System, and therefore there is no need to talk about the unreliability of the information. However, the entrepreneur was not successful in his endeavor.

Making a decision in favor of the tax authorities, the court pointed out the following. The address of a legal entity is a mandatory detail of the registration application. The location of a legal entity has significant legal significance. It determines the place of fulfillment of obligations, payment of taxes, jurisdiction of disputes. Unreliability of information about the address (location) of a legal entity affects the economic interests of an indefinite number of persons who may enter into relations with the organization.

In this situation, the building at the address indicated in the application is under reconstruction (construction), that is, it is not functioning. Submitting an application with false information should be considered as a failure to submit to the registration authority a document containing the necessary information. And this is the basis for refusal to register a legal entity (resolution).

Sergey Danilov, PB correspondent