Subsidiary liability is only possible in case of bankruptcy.

This year, the Federal Law "On Insolvency (Bankruptcy)" will celebrate its 15th anniversary since its adoption (26.10.2002). It is no exaggeration to say that changes are made to it every year and never once.

During its existence, the law, like a person, has matured. He had a period of innocent and harmless infancy, when he could not harm anyone and could not help anyone either. Then he got stronger, the period of adolescence began. And now we can observe how the federal law turns into an aggressive teenager ...

It all started back in 2009 with the establishment of the liability of the controlling persons of the debtor.

The person controlling the debtor is a person who has ... the right to give instructions binding on the debtor or the ability to ... otherwise determine the actions of the debtor ...

Since then, entrepreneurs have run the risk of being held accountable for the failures of their own business, which in the Russian Federation are often caused by economic instability or even by the actions of the state.

Just a few days ago, the Federal Law of July 29, 2017 No. 266-FZ "On Amendments to the Federal Law" On Insolvency (Bankruptcy) "and the Code of Administrative Offenses of the Russian Federation was signed and entered into force, which introduced further changes to the bankruptcy procedure and , in particular, in the procedure for bringing controlling persons to subsidiary liability.

The law, with the exception of some provisions, entered into force on July 30, 2017. All changes will be applied in full from September 1, 2017. At the same time, bringing to subsidiary liability under the new rules will be carried out already on applications filed from July 1, 2017.

Let's consider what features and nuances of bringing to subsidiary liability exist today.

Controlling persons

The controlling persons of the debtor, as before, include persons who, within three years prior to the commencement of the bankruptcy procedure, were:

• leaders (directors, etc.) of the organization;
• participants, shareholders, etc., owning at least 50% of shares (stakes);
• members of the liquidation commission;
• persons who could conclude transactions on behalf of the debtor;
• any other persons who could give instructions or determine the actions of the debtor for any reason.

ФЗ dated July 29, 2017 No. 266-ФЗ makes significant additions to this list. Now the arbitral tribunal can recognize any person as controlling if there are other grounds.
To sweeten the pill, the legislator added a restriction: "persons cannot be attributed to controlling the debtor if such attribution is associated exclusively with direct ownership of less than ten percent of the authorized capital of the legal entity and the receipt of ordinary income associated with this ownership."

Proceeding from this, the decision to change the actual managers and founders of the company to nominees from among friends, employees and relatives does not prevent the business owners and real managers from being held liable for subsidiary liability. In addition, the human factor should not be overlooked - nominal persons, in order to protect themselves from being prosecuted, will most likely point to the person who gives them instructions regarding the actions (transactions) of the debtor. This will be enough for the court to classify these persons as controlling.

The new law introduced legal grounds for exempting the “nominal value” from subsidiary liability. Interestingly, for the first time a legislator uses the popular term “nominal leader”. He will not be held liable if:

A) proves that he did not have a decisive influence on the decisions of the bankrupt company

AND!!! (that is, plus, optional)

B) will help to establish the real controlling person and / or find his hidden property or the property of the company - bankrupt.

In other words, in order to be exempted from subsidiary liability, the nominal leader will have to “surrender the real one”.

At the same time, the decision of the owners to "abandon" the debtor company also does not help them to evade responsibility, since in this case a simplified procedure for declaring the absent debtor bankrupt is provided (Article 228 of the Law "On Bankruptcy").

Who can initiate bringing to subsidiary liability

In this matter, virtually nothing has changed. The procedure for bringing to subsidiary liability can be initiated by:

• creditors;
• bankruptcy commissioners;
• authorized bodies (including tax authorities);
• representatives of the debtor's employees;
• employees and former employees of the debtor.

Whom and when will be brought to subsidiary liability

The new amendments do not introduce significant changes and only transfer the rules governing the substantiation of the claims for bringing to subsidiary liability from the expired Article 10 to the new Art. 61.11. The wording has actually remained the same.

The first reason is related to damage to the property rights of creditors as a result of the guilty actions of the controlling person. To use this basis, creditors, the manager and the authorized body must prove:

• the presence of harm caused to the property rights of creditors, i.e. the impossibility of paying off the debtor's debt in full;
• a causal relationship between the commission or approval of the manager and (or) the founder of the debtor of transactions and the fact of causing such harm, with the exception of bringing the debtor's manager to subsidiary liability in the absence (failure to provide) of accounting documents or distortion of the information contained in them. In this case, it is enough to establish the presence of one of the above circumstances and not to prove the causal relationship.

In practice, this means that the applicant must provide the court with evidence that it was the actions of the controlling person that led to the bankruptcy. In fact, this is not much different from proving the guilt of a specific person.

Thus, in case No. А79-3955 / 2009, the bankruptcy commissioner was faced with the fact that, on the instructions of the founders, the bankrupt made a number of unprofitable transactions. The manager appealed to the court to bring the controlling persons to subsidiary liability. However, the courts of all instances sided with the founders.

In the ruling of September 29, 2015 in this case, the Supreme Court substantiated its position with the following arguments:

• "The execution of transactions on the instructions of the defendants, as a result of which the debtor suffered losses ... was not the only and unconditional reason for the debtor's bankruptcy";
• almost all transactions were concluded during the period of the debtor's solvency and profitability of his activities;
• the bankruptcy commissioner did not provide evidence of the conclusion of transactions for the purpose of non-performance or improper performance;
• the fact that the defendants have the right to give obligatory instructions to the debtor in the pre-bankruptcy period does not in itself indicate the existence of grounds for bringing them to subsidiary liability.

The decisions in which the claims for bringing to subsidiary liability are satisfied contain an indication of the fact that the plaintiff has proven the fact of a causal relationship between the actions of the controlling person and bankruptcy

The court recognizes the proven link between the actions of the controlling persons and the harm caused to the creditor in the event that there is a fraudulent action.

Thus, in case No. A16-1209 / 2013, the bankruptcy commissioner stated that, by the decision of the head, the debtor did not take part in the tender for participation in the lease of communal infrastructure facilities. As a result, this led to a drop in income. The manager did not provide any evidence of the connection between the fall in income and bankruptcy. However, the court nevertheless brought the manager to subsidiary liability, having established that there were other obviously unfair and guilty actions of the manager: in parallel, he created another organization with the same name, but without debts, and began to withdraw all profits to it.

Case No. А56-7049 / 2012 can be cited as an example. The court brought to justice the main shareholder (56%). Due to his actions, the debtor entered into a number of transactions, after the appearance of signs of insolvency, therefore, they could not initially be executed.

However, even if the causal relationship between the bankruptcy and the actions of the controlling person has been proven, it will not be held subsidiary liability if it proves that it there is no fault in the impossibility of full repayment of creditors' claims, including:

• it acted in accordance with the usual conditions of civil commerce, in good faith and reasonably;
• his actions were taken to prevent him from further damage to the interests of creditors.

In addition to the sign of "causing harm to creditors by guilty actions", the most common "Formal" grounds

1. Failure by the director of the debtor's insolvency petition (now this is Art. 61.12);

2. Violation in the procedure for maintaining and / or storing accounting documents and other documents of the debtor, the maintenance of which is provided for by law, or their failure to provide the arbitration manager (now - subparagraphs 2 and subparagraphs 4 of paragraph 2 of Article 61.11);

3. More than 50% of the debt is due to criminal, administrative and tax liability (now - subparagraphs 3 of paragraph 2 of Art. 61.11).

The process of proving these facts is simpler than justifying the causal relationship between the actions of the controlling persons and the bankruptcy of the debtor. It is sufficient only to demonstrate the existence of a relevant circumstance in order to hold the controlling person liable.

So, in case No.A73-684 / 2016, the court brought the head to subsidiary liability, since he did not transfer the primary documents, material and other values ​​of the debtor to the bankruptcy administrator, and did not apply to the court with a petition to declare him bankrupt (Resolution of the Arbitration Court of the Far Eastern District from 26.06.2017 N Ф03-2144 / 2017 in case N А73-684 / 2016).

If there is a proven offense and the resulting debt in an amount exceeding 50% of the claims of third-priority creditors, the court will always side with the creditor.

In most cases, we are talking about offenses related to the payment of taxes to the budget. In fact, the tax authorities can not only initiate the bankruptcy procedure itself, but have “their own” basis for subsidiary liability. In this case, it is enough for them to present to the court a decision on the collection of the corresponding amounts of tax.

Despite this, the applicants on this basis can be not only the tax authorities, but also the liquidators themselves, which they actively use - this can significantly improve the level of repayment of bankruptcy debts.

The new law adds two additional bases to bring controlling persons to subsidiary liability:

1) if the controlling person “on the date of initiation of the bankruptcy case did not enter information that must be entered in accordance with federal law, or entered inaccurate information about the legal entity:

• to the unified state register of legal entities on the basis of documents submitted by such a legal entity;
• in the Unified Federal Register of Information on the Facts of Activities of Legal Entities in terms of information, the obligation to enter which is assigned to the legal entity. " This is, for example, information about the amount of net assets, about the pledge of movable property. Having provided inaccurate information, the head of the company creates an impression of him better than he actually is, for which he can pay in case of bankruptcy.

2) the debtor began to meet the signs of insolvency not as a result of the actions and (or) inaction of the person controlling the debtor, but after that he committed actions and (or) inaction that significantly worsened the financial situation of the debtor.

The end of the bankruptcy procedure is not over yet!

Until now, upon completion of the bankruptcy proceedings or termination of the procedure due to the lack of funds for bankruptcy, the controlling persons were released from liability for the debtor.

Now the law allows to bring controlling persons to subsidiary liability outside the framework of the bankruptcy procedure.
Thus, a controlling person may be held liable for subsidiary liability if:

1. Proceedings in the bankruptcy case were terminated due to the lack of funds sufficient to reimburse court costs for carrying out the procedures used in the bankruptcy case,

2. The application of the authorized body for declaring the debtor bankrupt was returned.

Also, creditors can apply for subsidiary liability after the end of bankruptcy proceedings. The deadline for filing is three years from the moment when the creditor found out or should have found out about the existence of appropriate grounds for bringing to responsibility.

Taking into account Russian realities, when owners leave empty organizations, this rule is more than necessary. Time will show how this norm will be implemented in practice. Today, it can be noted that the courts quite often terminate bankruptcy proceedings due to the lack of funds to finance the procedure (paragraph 8, clause 1 of article 57 of the Federal Law "On insolvency (bankruptcy)"). Therefore, it can be assumed that in a short time we will be able to see the rules for the application of this norm formulated by the courts.

When bankruptcy won't save

Many were waiting for her for the sake of paragraph 3 of Art. 213.28 Federal Law "On Insolvency (Bankruptcy)".

After the completion of settlements with creditors, a citizen declared bankrupt is released from further fulfillment of creditors 'claims, including creditors' claims that were not declared when the restructuring of a citizen's debts or the sale of a citizen's property was introduced (hereinafter referred to as the release of a citizen from obligations) - clause 3 of Art. 213.28 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)".

But not everything is so good for bankrupts and bad for creditors. The exemption has a number of significant exceptions, including those related to the controlling persons of bankrupt organizations.
Clause 6 of Art. 213.28 of the law directly provides for a lifelong possibility of collecting debts arising when a citizen is brought to subsidiary liability in the event of the bankruptcy of a controlled legal entity and upon compensation for losses caused by him.

Thus, the participants and managers of the company declared bankrupt, brought to subsidiary liability, will not be able to get rid of the debt hanging over them. The initiation of the bankruptcy procedure either by the person himself or by any creditor will not help in this. Unfortunately, such a debt cannot be written off.

FTS in case of bringing to subsidiary liability

The tax authorities are actively involved in bankruptcy proceedings.
As a rule, the FTS is one of the main creditors. The typical algorithm for initiating by the tax authorities the procedure for bringing the founders and managers of the debtor to subsidiary liability is as follows:

• conducting an on-site tax audit, based on the results of which tax arrears were established;
• enforcement of enforcement measures in accordance with Art. 46, 47 of the Tax Code of the Russian Federation;
• initiation or entry into bankruptcy proceedings as a creditor;
• after the debtor is declared bankrupt, bringing the founders or managers of the debtor to subsidiary liability.

The likelihood of a positive consideration of the application of the authorized body on the above grounds increases if the legality of the decision of the tax authority on additional tax assessment is confirmed by a court decision, which, for example, establishes the fact of obtaining an unjustified tax benefit in the form of an unlawful attribution of amounts under transactions with unscrupulous counterparties to expenses and acceptance of deductions for VAT.

This decision is important when considering an application for bringing to subsidiary liability. At the same time, the courts reject the arguments of the founders and managers that the commission of a tax offense by the company is the basis for bringing it to tax liability, and cannot be a reason for bringing the perpetrators to subsidiary liability.

Clearly

In order for the persons controlling the debtor to avoid bringing their subsidiary liability, it is necessary:

• remember that transactions for the withdrawal of assets shortly before the bankruptcy procedure increase the risk of bringing the persons controlling the debtor to subsidiary liability;
• always think over the business purpose (economic justification) of the reorganization or transactions for the alienation of the debtor's property, the justification for the choice of the counterparty, and also not to neglect challenging the decisions of the tax authorities in court. At the same time, it is important not to carry out asset stripping operations directly with fly-by-night firms, otherwise it will be impossible to prove the good faith and reasonableness of the actions;
• in the event that the transaction concluded by the debtor was clearly unprofitable, try to justify the fact that this transaction was part of interrelated transactions with a common economic purpose, as a result of which it was assumed to receive benefits, or such a transaction was concluded to prevent further damage to the company.

On the other hand - the parties of creditors - it is necessary to understand that there are more chances to bring the controlling person to justice in the following cases:

1) the facts of bad faith of the controlling person have been proven. For example: making transactions with unscrupulous counterparties, which led to the formation of debts from the debtor, the creation of other organizations in order to evade payment of debts, etc .;

2) the controlling person has violated the formal requirements of the law:

• bankruptcy petition was not submitted / untimely filed (Article 9 of the Federal Law “On Insolvency (Bankruptcy)”).
• violation of the introduction or storage of the documents of the debtor's financial statements or their failure to provide the bankruptcy commissioner (paragraph 4, clause 4 of article 1 of the Federal Law "On insolvency (bankruptcy)").

3) the debtor has been brought to criminal, administrative or criminal liability, as a result of which the debtor has an obligation to pay the debt, which exceeds 50% of the total amount of claims of third priority creditors.

Thus, we see that a comprehensive change in legislation and judicial practice makes the procedure for paying off the debts of a bankrupt organization, including at the expense of the founders' property, more and more clearly. It is not for nothing that in the course of the pre-verification analysis of candidates for an on-site tax audit, the property of not only the organization itself, but also the founders and their relatives is examined.

The Federal Law of July 29, 2017 No. 266-FZ "On Amendments to the Federal Law" On Insolvency (Bankruptcy) "and the Code of Administrative Offenses of Russia" already entered into force on July 30, 2017, amended not only the bankruptcy procedure itself, but and the procedure for establishing and bringing to subsidiary liability the controlling persons of the debtor. In full, the changes began to be applied from September 1 of this year, and they will be brought to subsidiary liability under the new rules on applications filed from July 1, 2017. Let's conduct a brief analysis of the new norms of the Bankruptcy Law within the framework of our new article.

Subsidiary liability is not a new institution for Russian legislation. In essence, it allows the creditor, who has not received full satisfaction of his claims from the main debtor, to present them to another who bears subsidiary liability along with him.

Before we move on to considering subsidiary liability in bankruptcy law, it should be noted that this institution is also provided for by civil law. So, according to paragraph 1 of Article 399 of the Civil Code of the Russian Federation, the creditor must first present his claims to the main debtor, and only if he refused to fulfill these requirements, then the creditor has the right to apply to the person bearing subsidiary liability.

The new, as well as the previous version of the Bankruptcy Law provides for the possibility of bringing the controlling persons of the debtor to subsidiary liability. The main purpose of this right of creditors is to suppress illegal actions of the debtor aimed at evading debt repayment and concealing the results of financial and economic activities.

The use of this type of often personal liability of a wide range of controlling persons possible in the new edition of the law is now quite topical. The formation of judicial practice is just beginning and a lot depends on the correct actions of not only the debtor, but also the potential controlling persons themselves.

Who are the controlling persons of the debtor?

According to clause 4 of Article 61.10 of the new version of Federal Law No. 127-FZ dated 26.10.2002 “On Insolvency (Bankruptcy)”, in the general procedure, the controlling person of the debtor is:

• the head or managing organization of the debtor, member of the executive body, liquidator and member of the liquidation commission;
• a person who could independently or jointly with other persons dispose of 50% of voting shares - for shareholders, and more than half of the share in the authorized capital - for founders. This category also includes persons who, in principle, had the right to appoint a manager of the debtor;
• a person who benefits from the illegal actions of officials authorized to act on behalf of the debtor.

The new Federal Law of July 29, 2017 No. 266-FZ made significant additions to this list. The aforementioned article 61.10 of the amended law establishes the characteristics of persons controlling the debtor, in respect of whom subsidiary liability may be applied in bankruptcy. Now these are not just shareholders and founders of a legal entity or a general director, but also, for example, a financial director or chief accountant. The law directly states - another position that gives the right to determine the actions of the debtor.

At the same time, the legislator in paragraph 6 of the article under consideration established a restriction according to which persons cannot be classified as controlling persons only on the grounds that they own less than 10% of the authorized capital of a legal entity and receive ordinary income associated with this ownership.

Therefore, the decision to replace the actual founders and directors of the company with “nominee” ones from among friends, relatives and employees cannot prevent the real directors and business owners from being brought to subsidiary liability in case of bankruptcy.

What can be brought to subsidiary liability in bankruptcy and to what extent?

The primary ground for bringing to subsidiary liability is specified in Article 61.11 of the Bankruptcy Law, namely, the impossibility of full repayment of creditors' claims. It should be noted that the law provides for the joint and several bringing to subsidiary liability of a group of controlling persons of the debtor.

The amount of subsidiary liability of the controlling person corresponds to the total amount of claims of all creditors of the debtor. At the same time, if it is proved to them that from his actions the amount of property damage inflicted on creditors is less than the general requirements for the debtor, then the amount of subsidiary liability of the controlling person will be reduced.

In addition, paragraph 10 of the analyzed article states that the controlling person of the debtor, who cannot fully satisfy the creditors' claims, does not bear subsidiary liability if it is proved that they are not guilty in this. However, the law directly indicates that this person must act within the normal conditions of civil turnover, in good faith, reasonably in the interests of the debtor and its owners - founders, without violating the rights of creditors.

Who has the right to bring to subsidiary liability?

In accordance with Article 61.14 of the new version of the Bankruptcy Law, the following persons have the right to file an application for bringing to subsidiary liability:

• arbitration managers on their own initiative and by decision of creditors;
• representatives of the debtor's employees;
• employees, including former ones, of the debtor;
• authorized government agencies, including primarily the tax service.

In your opinion, is subsidiary liability necessary for persons controlling the debtor?

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Participation of tax authorities in bringing to subsidiary liability

As a rule, they are actively involved in bankruptcy procedures. Employees of the Federal Tax Service of Russia begin or are included in the procedure for bringing the managers and founders of the debtor to subsidiary liability in bankruptcy. As a rule, it all starts with an audit, within the framework of which taxes are not paid in full. After that, the tax authorities take measures to collect the debt. Then they themselves become initiators or enter the bankruptcy procedure. Already after the debtor is declared bankrupt, his managers or founders are brought to subsidiary liability.

A positive result for the state on these grounds is achieved when the legality of the inspectorate's decision to charge additional taxes is confirmed by a court decision that has entered into legal force. Such a decision, for example, can establish the fact of obtaining an unjustified tax benefit in the form of illegal attribution of amounts under transactions with expenses, as well as the acceptance of VAT deductions.

The judgment is especially important when considering applications for bringing to subsidiary liability. In this case, the arguments of the managers and founders that the tax violations committed by the company are grounds for bringing only to tax liability, but do not serve as a reason for bringing to subsidiary liability, may be questioned.

Letter from the Federal Tax Service of Russia on the new norms of the Bankruptcy Law

In connection with the entry into force of the new norms of the Bankruptcy Law, the Federal Tax Service of Russia issued a letter dated August 16, 2017 No. SA-4-18 / [email protected]“On the application by the tax authorities of the provisions of Chapter III.2 of the Federal Law of 26.10.2002 N 127-FZ”, within the framework of which the tax authorities for their subordinates clarified the provisions on the responsibility of the heads of debtors, as well as all other persons in bankruptcy cases. This letter was issued due to the fact that the tax authorities are the representatives of the interests of the Russian Federation in cases of this category. The full text of this letter can be found on our website by downloading it from the link below.

The director will have to answer for the "abandoned" company.

From June 28, 2017, Federal Law No. 488-FZ of December 28, 2016 "On Amendments to Certain Legislative Acts of the Russian Federation" (hereinafter Law 488-FZ) comes into force. This law amends corporate law, legal entity registration law and bankruptcy law. The purpose of the amendments is to toughen the subsidiary liability of directors for the debts of companies and for bad faith. In particular, according to the new law, it will be easier to bring a director to subsidiary liability for a company whose business has been “rewritten” to a new legal entity or has otherwise evaded obligations.

Practice knows many cases when a company was "thrown" due to business failures. To avoid paying creditors or declaring bankruptcy, business owners resorted to unfair methods:

• re-registered the company as nominee owners,
• transferred the business to a new legal entity,
• registered the location of the company in another region,
• joined another company,
• did not notify creditors in case of voluntary liquidation of the company.

In addition, they took advantage of the fact that the tax authorities exclude an organization from the Unified State Register of Legal Entities if no reports are received for a year or more. To recover debts from such a company, it was first required to restore it to the Unified State Register of Legal Entities or find a new legal entity and prove that it is the same company.

Then it was required to initiate bankruptcy, during which the director of the company was brought to subsidiary liability. Often this difficult path did not bring results, and unscrupulous businessmen managed not to pay their debts.

From June 28, 2017, clause 3.1 of Art. 3 of the LLC Law. Novella introduces changes to subsidiary liability for LLC debts. From the director of the company and other controlling persons, creditors will be able to recover the debts of the company, which was excluded from the Unified State Register of Legal Entities.

Also, the novel contains not only provisions on the subsidiary liability of the director. If the organization is excluded from the register, additional liability measures will be applied to the director or member of the LLC, which owns a 50% or higher share in the business. For three years such persons will not be entitled to:

• open a new legal entity,
• acquire a stake in the company,
• lead the company.

• there is an entry in the Unified State Register of Legal Entities that the information about the organization's address is unreliable;
• there is a note in the register that the company has submitted incorrect data on the sole executive body;
• the company did not comply with the decision on compulsory liquidation.

In fact, the law will temporarily prohibit businessmen from doing business if they committed significant violations during the management of former companies.

When a company goes bankrupt, directors speak of subsidiary liability in two cases:

the director has not filed a bankruptcy petition against the debtor's company in bankruptcy;
the actions of the director of the company led to its bankruptcy.

At the same time, they recently introduced norms on the presumption of guilt of controlling persons in the event of a company's bankruptcy. Controlling persons mean not only the management bodies of the company or its direct owners, but also persons who can indirectly manage the business. In the event of bankruptcy of the company, the controlling person must prove that there is no connection between his actions and bankruptcy.

From 28 June 2017, para. 5 p. 5 art. 3 ФЗ dated 28.12.2016 No. 488-ФЗ makes changes to Art. 10 bankruptcy law. Changes in subsidiary liability will affect several aspects at once:

• it will not be necessary to indicate in the application the amount of responsibility of the controlling person;
• that creditors want to bring the director to subsidiary liability, it will be possible to declare after the completion of the bankruptcy proceedings;
• the limitation period for the statement of subsidiary liability of the director will be increased to three years.

To bring the director to subsidiary liability, it is necessary to take into account the legal positions of the RF Armed Forces, which the court formed when considering cases in 2016-2017.

In particular, in order to achieve subsidiary liability of the director, it is worth paying attention to the following:

The fact that the director did not submit accounting or financial documents is not enough for liability to arise. To apply the presumption of guilt of the controlling person, it is necessary to prove that the absence of documents or distortion of data interferes with the bankruptcy procedure (determination of the RF Armed Forces of 18.08.2015 No. 303-ES15-9824 in case No. A73-5928 / 2013).

The company had unfulfilled obligations to creditors. If the director has filed an application for bankruptcy of the company, the fact of the appeal does not mean that the company can no longer pay off its debts (determination of the RF Armed Forces dated February 20, 2016 No. 301-ES16-820 in case No. A29-6730 / 2012).

A causal relationship between the failure to file a bankruptcy petition and the harm caused by such actions of the director to creditors is presumed (determination of the RF Armed Forces dated March 31, 2016 No. 309-ES15-16713 in case No. A50-4524 / 2013).

In this article, we will comment on the recently (28.12.2016) adopted law numbered 488-FZ, which amends the Federal Law of 08.02.1998, No. 14-ФЗ "On Limited Liability Companies", in the Federal Law of 08.08.2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs", and in the Federal Law of 26.10.2002, No. 127-FZ "On insolvency (bankruptcy)" ... Most of its articles come into force on 01.07.2017 and relate to expanding the possibility of interested parties to file applications with an arbitration court in order to bring them to subsidiary liability, as well as liability in the form of recovering losses from managers and owners (beneficiaries) of organizations. In addition, in July 2017, an overview of the most important procedural changes in parts and article "Amendments to the Law on Bankruptcy on Subsidiary Liability" was published.

In corporate legislation - FZ "On Limited Liability Companies" - Federal Law 488-FZ introduced article 3.1 on the possibility of bringing to subsidiary liability persons who previously controlled the activities of a company that was forcibly liquidated by the tax authority due to the lack of signs of an actor.

The term “” itself and all the grounds for its application were described earlier in the specified article.

Subsidiary liability without bankruptcy

These changes can be called cardinal, since any interested parties are allowed to submit an application for bringing the participants and heads of companies to subsidiary liability. True, this applies only to those legal entities that were excluded from the Unified State Register of Legal Entities due to non-submission of reports and lack of movement of money through accounts within a year before such an exception. This rule has been in effect since September 1, 2017.

Companies abandoned with debt and liquidated by the registration authorities now entail risks for their former beneficiaries.

Also, the law allows an increase in the period of liquidation of a company from 1 year to 1.5 years by a court decision, while prohibiting the repeated (in case of cancellation of the previous decision) filing an application for voluntary liquidation within 6 months.

The following amendments have been made to the Federal Law of 08.08.2001, No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”.

In the Unified State Register of Legal Entities, there will be a new column containing information on the bankruptcy procedures of the organization. Such information will be sent to the registering authority by the operator of the Unified Federal Register of Bankruptcy Information (EFRSB) no later than 3 days from the date of their submission to the EFRSB.

Forced liquidation of companies is prohibited in the presence of information about their bankruptcy, or in the presence of substantiated statements from interested parties about the violation of their rights by the liquidation of the company. It should be noted that in practice this approach has been in effect for a long time, now it is enshrined at the legislative level.

Amendments to the Bankruptcy Law

Federal Law of October 26, 2002 N 127-FZ "On insolvency (bankruptcy)" has undergone a number of impressive changes, especially his well-known article 10.

UPD. As mentioned above, the most important procedural changes in 2017 are described in parts and article "Amendments to the Bankruptcy Law on Subsidiary Liability", and article 10 of the Bankruptcy Law in July 2017 became invalid.
The changes relate to the applications filed from 01.07.2017 to bring persons to subsidiary liability and to recover damages.

Article 10, which provides for subsidiary liability, was supplemented with amendments to paragraph 5 on the possibility submission and consideration of the relevant application and after the completion of the bankruptcy proceedings, as well as when the bankruptcy petition is returned or the bankruptcy case is terminated due to the lack of funds to finance the procedure.

The last reason - the lack of funding was very common for the court's failure to enter bankruptcy procedures and now is not an obstacle for bringing persons to subsidiary liability, even in the absence of bankruptcy society as such. Tens and hundreds of bankruptcy petitions by creditors were returned to the applicants due to the lack of proof of the possibility of financing future bankruptcy proceedings. As a result, all debtors of these creditors were able to leave the issues of debt repayment without any worries. Now this vicious practice is stopped.

Bringing to subsidiary liability without a bankruptcy case

In this case, a statement on the liability of the controlling persons is submitted within three years to the same arbitration court that returned the bankruptcy petition or dismissed the case. The legislation now also allows the filing of a statement of claim to recover damages from those guilty in a claim proceeding according to the same rules.

In addition, the right to submit a similar application is granted and society workers, though only in the bankruptcy proceedings.

A statement of responsibility for failure to file a bankruptcy petition can be filed within 3 years from the moment the corresponding obligation arises, but no later than 3 years from the moment the bankruptcy proceedings were introduced.

In a situation where the court, at the request of a party, establishes the existence of grounds for bringing to subsidiary liability, but the amount of this liability has not yet been determined (the bankruptcy estate is replenished, settlements with creditors are in progress), the arbitration court, on its own initiative, must suspend the consideration of a separate dispute, and in operative part of the definition indicate evidence of wrongdoing... The appellate court, which canceled the court ruling on refusal to prosecute, should act in the same way - indicate in the operative part on the existence of grounds for prosecution and suspend production. The proceedings are resumed on the basis of the liquidator's petition, which indicates the amount of money to be collected.

After the completion of the bankruptcy proceedings, on general grounds (part 4 of article 10 of the Bankruptcy Law), creditors have the right to apply for subsidiary liability of the guilty persons.

• on current liabilities
• included in all queues of the register of creditors' claims
• registered creditors.

As we can see Federal Law of December 28, 2016 No. 488-FZ"On Amendments to Certain Legislative Acts of the Russian Federation" made it possible, on a par with bankruptcy creditors, to apply to the guilty parties, including after completion of the bankruptcy proceedings, to creditors for current obligations and to those creditors whose claims were taken into account for repayment at the expense of the remaining all other creditors of the property.

Performance list for the recovery of subsidiary liability should contain not only the amount paid to each creditor, but also its priority relative to other creditors. Now the structures affiliated to the guilty persons will not be able to simply redeem debts (subsidiary liability, losses) at the auction, since specific creditors will be identified as claimants.

• the right to impose claims on the controlling persons of the company after the end of its activities has appeared, but only as a result of forced liquidation
• compulsory liquidation of enterprises is prohibited if there is a bankruptcy entry in the Unified State Register of Legal Entities or an application of an interested person is submitted to the tax authority
• an application for bringing to subsidiary liability can be submitted both after the completion of the bankruptcy procedure, and outside this procedure, if its introduction was previously refused or the proceedings were terminated
• an application for bringing to subsidiary liability can be submitted by any type of creditors: registered, registered, current, employee
• as a general rule, an application for bringing to subsidiary liability and recovery of damages is filed within three years from the moment the person should have learned or learned about the existence of relevant grounds
• The creditors themselves will be able to initiate and carry out civil prosecution of persons guilty of bankruptcy or before creditors within the framework of enforcement proceedings and after the completion of bankruptcy procedures.

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• Amendments to the Bankruptcy Law on Material ...

This review is a clear-cut commentary by lawyers on the bankruptcy of the UK Entente on the amendments made in July 2017 to the Federal Law “On Insolvency (Bankruptcy)” regarding bringing to financial responsibility... The material is divided into 2 parts. You read the first, and the second can be seen by.

Article 10 of the Law "On Insolvency (Bankruptcy)" that previously regulated subsidiary liability, previously known to all bankruptcy experts, became invalid with the adoption of Federal Law No. 266-FZ of July 29, 2017 "On Amendments to the Federal Law" On Insolvency (Bankruptcy) "and Code of the Russian Federation on Administrative Offenses ”.
Amendments to the Bankruptcy Law have been made significant, but, in our opinion, mostly procedural. Those. an article written by us in 2010 on the grounds for attracting to, which we and many principals have been guided by for more than 7 years, remains relevant. The biggest changes are a slight expansion of the circle of responsible persons (accountant, deputy directors, in some cases - other persons), the possibility of attracting members of the company for failure to submit an application and the right to file an application outside the bankruptcy procedure, including a claim for damages.
Article 61.10 of the amended Bankruptcy Law establishes signs of the debtor's controlling persons, to which financial liability can be applied. Now, this is not just the general director or shareholders / participants of the company, but also any individual or legal entity capable of influencing the activities of the company, including other directors, in addition to the general director - commercial, financial, executive, etc., an accountant, liquidator. Shareholders or members of the company may be held liable if their ownership of the company is 10% or more.

Material liability for the impossibility of full repayment of creditors' claims

This basis for filing claims against controlling persons is the most common. Article 61.11 of the Bankruptcy Law provides for 5 independent points:

1. causing significant harm to creditors by making transactions, both contested (disputed) and not. Any person at fault can be sued. Previously, in court, it was previously required to successfully challenge the debtor's transactions in order to file such a statement.
2. the financial statements are missing or distorted, as a result of which the bankruptcy procedures are significantly complicated. Here the defendant can be both the head of the company and an accountant, or an organization that maintains accounting. The base is quite widespread, it has not undergone important changes.
3. the third stage of the register of creditors consists of more than 50% of claims for liability for administrative, tax or criminal illegal acts. The head of the company and the controlling person will be responsible for such a claim. The foundation is new, aimed at protecting the state-administrative regulation of relations.
4. documents required by corporate law are missing or distorted. The subjects of responsibility are also the head and persons responsible for the storage of documents.
5. at the time of the introduction of bankruptcy procedures, forged information was entered into the Unified State Register of Legal Entities or the Unified Federal Register on the facts of legal entities. The person who submitted false information and documents is responsible for such a claim.

At the same time, the guilty persons are brought to subsidiary liability regardless of the submission and consideration of applications for challenging transactions, or in case of refusal in such applications after the expiration of the limitation period.

Nominee directors and members of companies

Not subject to liability nominee leader (participant), or the amount of his liability is reduced if it is proved that another person is the controller of the debtor.
Also, personal responsibility does not apply to the controlling person when it is proven that there is no fault in his actions. In this case, they must be provided with evidence of an action in the ordinary course of business without violating the interests of third parties and the debtor, or that such actions were committed to prevent further damage to creditors.
Amount of property liability equal to the outstanding claims of the register of creditors' claims, registered claims and current payments. As in the previous edition, the legislator allows a decrease in the amount of the defendant's property liability, if the latter proves the infliction of harm to a much lesser extent than stated. Does not include in the amount of liability claims of the defendant himself against the debtor and his affiliates.

Personal property liability without bankruptcy

It is important - they do not have such an initiative, which were not declared within the framework of the bankruptcy case.

In this case, all types of creditors, but not the arbitration manager, are vested with the right to file applications. The basis for the appeal is the incomplete satisfaction of the creditors' claims and the violation of their rights, which they learned about after the completion (termination) of the procedure. If a similar statement to the same respondent and on the same grounds has already been made, the dispute shall be terminated.

Failure to file a bankruptcy petition

This basis for bringing the CEO to responsibility is now applies to shareholders / members of the company, since the new version of the law imposes an obligation on filing an application in the presence of signs of bankruptcy on them. If 2 or more persons are to blame, then personal responsibility is applied jointly and severally.

As before, the amount of liability includes only those obligations that arose after the date when signs of insolvency appeared and before the date of initiation of the bankruptcy case.
Presumption of guilt introduced- the defendant is obliged to prove that there is no connection between the failure to file a bankruptcy petition and the impossibility of satisfying the creditors' claims.
In the case of filing an application for the absence of signs of insolvency, or the formation of such signs due to the debtor's failure to dispute unreasonable claims of creditors, the guilty persons are also brought to subsidiary liability. In this case, one must also remember about the articles of the Criminal Code of the Russian Federation on illegal actions in bankruptcy and fictitious bankruptcy.
At the end of the first part of the review of amendments to the Federal Law “On Insolvency (Bankruptcy)”, let us decide who can declare that controlling persons are held liable:

• bankruptcy commissioner on his own initiative
• bankruptcy commissioner
• bankruptcy creditors
• debtor's employee representative or employee / former employee
• authorized bodies

This list of applicants has remained the same. We will comment on the procedure for considering cases of this category in court, issues of limitation of actions, options for ending the consideration of an application (amicable, methods of disposing of a claim), as well as the issue of recovering losses in bankruptcy and outside the procedure.

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• Subsidiary liability without bankruptcy - ...
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