Subsidiary liability in case of bankruptcy in 2021

Fedresurs statistics show that the amount of claims for subsidiary liability, the number of claims and the number of persons who will be liable for the debts of bankrupt companies are increasing every year. Courts are increasingly satisfying demands for the collection of subsidiary liability.

If in 2015 only 4% of requirements were satisfied; then in 2021 - already 41%. In the first 6 months of 2021, a third of claims were satisfied. Other sources are even more frightening: according to statistics from the Judicial Department of the Supreme Court (SC), for 2021, the courts satisfied more than half of the demands.

From 2021 to 2021, the increase in the number of cases where directors, business owners, chief accountants and financial directors of companies of any size were able to be held vicariously liable was 7.5 times.

Moreover, the amounts that were recorded as debts of individuals. persons within the framework of subsidiary liability, often simply astronomical figures appear in court decisions. Maximum - almost 1 billion rubles. At the same time, a figure from 5 to 30 million rubles is quite common.

Subsidiary in simple words

You are the director of a company that was founded 10 years ago. You made decisions, made deals, ran businesses. Things went with varying degrees of success, but you began to expand, contracts were concluded for substantial sums. Here comes the crisis, there are no new clients. You have unfulfilled obligations to your counterparties, and you are having a hard time finding money to pay your employees. There is no way out but bankruptcy.

You file a bankruptcy claim for your company with the Arbitration Court, the liquidation procedure begins, and a manager is appointed. As a result, the company is liquidated, but six months later you find out that the manager wants to involve you in the debt obligations of your legal entity in the amount of 350 million rubles. What does this mean?

If the court finds the manager right, you will owe 350 million rubles. To do this, he will have to prove that you are really guilty of ruining the organization.

Vicarious liability of an organization is the transfer of debts from the main debtor (company) to the individuals who managed it. This measure is applied only in cases specified by law. For example, it will not be possible to attract an office manager for debts to contractors. It is very important to understand the fact that the director will also not be involved if the court and the manager cannot prove his guilt in bankruptcy.

There are 3 parties involved in such processes:

Creditors.
These are the affected persons who were unable to get their money back, missed out on profits and generally lost from the bankruptcy of the company.
Debtor.
This is the organization itself, which owes a lot of money and is going through the process of liquidation in court through bankruptcy.
Subsidiary debtors.
These are individuals who managed the debtor and who brought the company to bankruptcy through incorrect or deliberate decisions.

In particular, the category of “decision makers” often includes:

Chief Accountant;
director;
members of the Board of Directors;
financial director;
founders.

Affiliated persons - citizens who are not legally connected with the company, but secretly managed it - can also act as subsidiary debtors. For example, through a nominee director.

Subsidiary means that guilt must be proven in court. It cannot occur or be assigned automatically. The bankruptcy of a company does not a priori mean that someone is to blame.

Can an individual be called a subsidiary in the event of bankruptcy of a legal entity?

The debtor organization may go bankrupt during the liquidation process. Creditors can also file for bankruptcy. The bankruptcy process is led by a trustee. His responsibilities include searching for assets and forming a bankruptcy estate, selling property and paying creditors.

Creditors and the manager have the right to study documents on financial and economic activities, transactions for the last 3 years. Based on the results of such checks, it can be established that other persons are to blame for the formation of large debts and signs of bankruptcy.

If, after the sale of property, the debts of creditors remain unpaid, and checks prove the guilt of other persons in bankruptcy, it is allowed to bring to subsidiary liability. An application with such demands is submitted to the court by creditors or the manager. If the court grants the application, the remaining debts will have to be paid to the subsidiary defendant.

List of persons

To bring individuals to subsidiary liability, it is necessary to prove that they could influence the decisions and actions of the bankrupt organization in the last 3 years.

The list of such persons may include:

the head of the company, including the former director
- he makes sole decisions on financial and economic activities, has the right to carry out most transactions without the approval of the founders;
chief accountant
- he is responsible for accounting and reporting, the reliability of the information in them;
founders (owners) of the company
- they can give the director instructions on finances and transactions, make decisions on the withdrawal or acquisition of assets, making major transactions or refusing them;
other persons who had the authority to conclude transactions, make decisions, dispose of property
- for example, such authorities can be transferred by a notarized power of attorney, by decision of the founders.

In rare cases, bringing individuals to subsidiary liability may affect relatives and family members. This is not directly stated in the law, but it is not prohibited either. In this case, creditors will have to prove that the relative influenced decision-making and dubious transactions.

Please note that in one bankruptcy case there may be several subsidiary defendants at once. For example, if all the founders approved a major transaction for the sale of property, and its value was obviously lower than the market value, creditors have the right to insist on a subsidy.

Reasons

By default, the founders, director and chief accountant are not liable with their property for the company’s debts. It is understood that during the period of operation of the company they acted reasonably within the framework of business risk and made informed decisions.

Therefore, they can be held vicariously liable only for the following guilty actions:

for failure to submit information to the Unified State Register of Legal Entities about the start of liquidation through bankruptcy;
for failure to post information about bankruptcy on the Federal Resources website;
for malicious evasion of repayment of accounts payable, if this is confirmed by materials of a criminal or administrative case;
for violations in maintaining and approving reporting, if this interferes with the formation of a bankruptcy estate or the sale of property;
for completing or approving a transaction that entailed a violation of the interests of the creditor.

Let us separately note the last item on the list.

Such transactions may include the withdrawal of assets in the last years and months before bankruptcy, obtaining large loans in the presence of large debts. The refusal of the founders to approve a major transaction, although it could bring significant income, can be considered as culpable actions.

Violations with documents and reporting may consist of distortion of data, concealment of receivables or their unjustified write-off, non-receipt of funds or assets. Violations with reporting are usually committed by the manager or chief accountant. At the request of the creditor, they may be held vicariously liable.

The applicant must prove the grounds for collecting the subsidy. For its part, the defendant can present evidence, arguments, and objections. We'll tell you more about this below.

Collection procedure

Vicarious liability in bankruptcy may arise in the amount remaining after the sale of property and settlements with creditors. All claims made against the defendant must be included in the register of creditors.

The algorithm for collecting subsidies is as follows:

Based on the results of the sale of property, the manager draws up a report, indicating in it the balance of the outstanding debt;
creditors or the manager check documents and information on all aspects of the debtor’s activities, the validity of transactions with property and funds;
if the results of the inspection confirm the guilty and dishonest actions of the controlling persons, an application is submitted to arbitration;
During the consideration of the case, the court has the right to introduce interim measures in relation to the property of the subsidiary debtor (seizure of assets and accounts, ban on registration actions);
if the application is found to be justified, the creditors are issued a writ of execution

In case of bankruptcy of individuals, subsidiary liability does not apply.
If an organization goes bankrupt, then an individual may be recognized as a subsidiary defendant. To do this, it is necessary to prove in court that the guilty actions or decisions of an individual led to bankruptcy.

Based on the writ of execution, you can contact the FSSP to initiate proceedings and levy execution on the property and funds of the subsidiary debtor. The deadline for presenting the sheet for execution is 3 years. Debt collected from a subsidiary defendant is not considered uncollectible and is not written off after completion of bankruptcy.

When do managers risk becoming perpetually indebted?

Participants of a legal entity will be held liable if they specifically ruined the organization through their actions.

What does it mean?

The director or other manager delayed the recognition of insolvency. When a company is no longer able to pay creditors, its management is obliged to apply to the Arbitration Court within 30 days and declare bankruptcy. Otherwise, creditors will do it. The application must be submitted within one month from the moment the manager became aware of the impossibility of settlements.
Let's be honest: in reality, this provision of the law is practically not enforced. What do we see in practice? The manager, realizing his deplorable situation, contacts the bank. He wants to get a loan to cover current debts and try to improve his financial situation. Then he will take out another loan. And so - to the bottom of the debt hole.
The management entered into frankly dubious deals. For example, a batch of rubber boots was purchased for 5 million rubles, but was sold for 4.5 million rubles. Although the market value of such a volume of boots is 7.5 million rubles.
Here it is important to understand why the unprofitable sale occurred, where the proceeds went, and to whom this product was sold.
The inaction of LLC participants is also questionable. For example, if one partner is on vacation in London, and the other, meanwhile, enters into unprofitable deals, ruining the company. Moreover, the one who removed himself from the case signs and approves the transactions. This line of behavior will arouse healthy suspicions among the court and creditors.
Managers cannot show the necessary documents; they have lost some of the documentation. In such cases, the courts do not think for long. If documents lack certain information or there is distortion of data, then management is always held vicariously liable.
Directors, founders and other involved persons often try to leave with the banal “documents were burned.” Recently, more and more often, future bankrupts have their servers “break down” or are dropped when being moved to another building by handymen hired on the street - Tajiks. And all accounting documentation is stored on those servers.
But such excuses no longer save those responsible who want to cover their tracks. It is necessary to restore lost documents and file a lawsuit. This is the responsibility of those concerned if they want to avoid blame.

Vicarious liability is a serious charge with serious consequences.
Vicarious liability is applied to persons who, through their actions, brought the organization to ruin, removed assets and plunged the LLC into a deep debt hole. Millions of company debts are transferred to the culprits; Often a criminal case is opened against them.

Personal bankruptcy

Is it possible to write off subsidiary liability if you were unable to repel the creditors’ demands, and the court ruled not in your favor? It is not very easy to get rid of subsidiary liability in bankruptcy.

Through bankruptcy of individuals. After collecting the subsidiary debt, other types of obligations can be written off. The debtor can go through the bankruptcy procedure through the court or the MFC. We recommend preparing documents and going through all procedures with the support of a lawyer. If you make mistakes, you may be held accountable instead of having your debts written off.

After going through the procedure through the MFC or arbitration, subsidiary liability after bankruptcy of an individual will remain. But by getting rid of other types of obligations, it will be easier to pay off the subsidiary debt.

Limitation periods

When considering a creditor's application, it is difficult to refer to missed deadlines. When arbitration opens a bankruptcy case, it checks the validity of all claims. Therefore, the register of creditors does not include claims for which the deadline for collection has been missed.

There is another statute of limitations that you need to pay attention to. The creditor is obliged to present a writ of execution within three years. If this period has expired, the bailiffs are obliged to refuse to initiate proceedings. Accordingly, you can also file a complaint if the court unreasonably initiated a case based on a writ of execution with an expired statute of limitations. And the FSSP officer began to implement the court’s decision.

Redemption of subsidiary liability

This is not the easiest way to solve the problem, especially if you do not understand the nuances of the law.

If a creditor has been trying for a long time and unsuccessfully to collect a subsidiary debt, he can sell (assign) it. In such transactions, the redemption amount is several times less than the amount of the principal debt.

Acting through companies controlled by you, you can try to buy back your own debt for a symbolic amount. There is no guarantee that the creditor will agree to assign the debt for a small refund. But if you manage to conclude such an agreement, the savings on payments will be significant.

In what cases is the subsidiary procedure for the debts of a bankrupt company not applied?

In court, the circumstances of bankruptcy will be closely studied by the arbitration manager and creditors. You have nothing to fear if the ruin was not your fault.

Example No. 1. You purchased equipment at a price of 10 million rubles, but since the supplier is based in the USA, the calculations were made in dollars. The potential profit would be 33 million rubles. But the dollar suddenly rose. The client was unable to pay for the equipment and declared himself bankrupt.

You were included in the register, but after that your company was also forced to declare itself bankrupt because the receivables were never repaid.

Example No. 2. You entered into a supply deal with a large client and purchased goods in Japan. Then, in the process of active wholesale deliveries, your client found more profitable suppliers and refused further cooperation. You learned that a competitor has entered the market and supplies the same product at a price 1.5 times cheaper.

As a result, you lose regular customers, there is no more profit, and you need to close this business through bankruptcy liquidation.

In the presented circumstances, there is no fault of the managers and controlling persons; they acted honestly and did not bring the organization to bankruptcy. It is not their fault that the market dictates strict rules, and not everyone can comply with them.

Vicarious liability for the inability to fully repay creditors' claims

One of the latest trends in the legal environment is a sharp increase in cases related to the consideration of applications for bringing to subsidiary liability the heads of organizations in respect of which bankruptcy proceedings have been initiated. The claims brought forward are related to the requirement to oblige the general director, chief accountant, founder, nominal and actual manager to repay the debts of the bankrupt organization at the expense of personal funds and property. The increase in the number of legal disputes is associated with a significant change in Russian law, the establishment of new legal principles for bringing to subsidiary liability in the form of a presumption of guilt of an official. Despite the constitutional provision that no one is obliged to prove his innocence, the bankruptcy law invites the person involved to prove in court the absence of his guilt in the bankruptcy of the organization. A passive approach or an incorrect way of protecting one’s own interests will entail personal financial liability for the official for the uncovered debts of the legal entity. In this publication we will consider the basic provisions of the law on subsidiary liability of persons controlling the debtor.

Publication date: 03/19/2018

The current law suggests that bringing members of the management of a legal entity to subsidiary liability in the event of bankruptcy is not a measure of punishment for economic miscalculations and business mistakes, but a legal mechanism for restoring the rights of creditors of a bankrupt organization. This mechanism is activated when the property and assets of a legal entity are not enough to pay off the claims of creditors, and the business decisions that caused bankruptcy deliberately made to the detriment of the interests of the legal entity itself, its counterparties, tax authorities or other interested parties.

Who is recognized as the person controlling the debtor and who can be assigned subsidiary liability?

The principle of the law states that if full repayment of creditors’ claims is impossible due to the actions / inaction of the person controlling the debtor, then he bears subsidiary liability for the debtor’s obligations.

The controlling person of the debtor is an individual or legal entity who has or had the right to give instructions that are binding on the debtor or to determine his actions no more than three years prior to the appearance of signs of bankruptcy, as well as after they arose before the arbitration court accepted an application for declaring the debtor bankrupt.

The law (Article 53.1 of the Civil Code of the Russian Federation, Article 61.10 of the Bankruptcy Law) does not provide a clear list of positions, indicating only the general legal criteria by which a person can be recognized as controlling the debtor and, as a result, subject to subsidiary liability when committing guilty actions. The basic legal principle of identification is that the person controlling the debtor is the entity that has the actual ability to give binding instructions or is otherwise capable of determining the legally significant actions of the legal entity. The actual possibility of management is realized not only in the form of occupying an official position in the organization, but also in the form of managing a legal entity through a nominee director, through family ties, through property with persons included in the board of directors, through direct or indirect participation in the capital of the debtor organization etc.

Of course, all officials without exception should not fall under the category of a controlling debtor. When considering the issue of bringing to subsidiary liability, the law obliges the court, even despite the fact that the person, according to formal characteristics or direct instructions of the law, is classified as a controller, to study in detail the degree of his involvement in the process of managing the debtor organization, that is, to assess his actual ability to accept decisions that are significant for the debtor. According to the logic of the law, a financial director or chief accountant who is not vested with the right of first signature and the right to make independent decisions on behalf of the organization, executing the instructions of the first person due to official subordination, cannot be recognized as a controlling person. Ordinary employees, middle management, minority shareholders, etc. are not recognized as controlling persons. It is the court that determines whether a particular official will be recognized as controlling the debtor.

At the same time, there is an exception to the above rule - a rebuttable presumption. In pursuance of the law, the court by default recognizes the debtor as a person controlling the debtor, unless he proves otherwise :

the head of the debtor (director, general director) or the management organization of the debtor,
a member of the executive body of the debtor (board of directors, members of the board, directorate since, due to their status, they have the opportunity to exert a significant influence on the activities of the debtor),
liquidator and member of the liquidation commission of the debtor;
a person who has the right to dispose of 50 percent of the voting shares or more than half of the authorized capital;
a person who has the right to appoint a manager of the debtor.

The issue of the legal fate of the nominee director , who often expects that by indicating his formal non-involvement in the activities of the legal entity, he will avoid any financial liability for its debts. The current law stipulates that the nominal manager does not lose the status of a controlling person, since his removal from management does not mean the loss of the opportunity to influence the debtor and does not relieve the nominal manager from performing his duties of proper management of the legal entity. The nominee director will bear subsidiary liability along with the actual director. With all this, the nominal manager has the legal opportunity to reduce the share of his liability if he discloses unknown information about the true actual managers or about the fate of the organization’s property, at the expense of which the claims of its creditors can be satisfied.

The issue of recognizing a person controlling the debtor, an entity that has nothing to do with the management or management of the debtor, but has benefited materially from the illegal, dishonest behavior of its manager, should also be raised. Article 61.10 of the Bankruptcy Law stipulates that obtaining a significant benefit in the form of increasing or saving assets, which was formed as a result of illegal and dishonest actions of the debtor’s manager, entails recognition of the beneficiary as a controlling person of the debtor. For example, in the event that the general director of the debtor concludes in bad faith at a significantly reduced market value a lease agreement for real estate, which is the main source of income of the debtor (provided that this fact led to the onset of objective bankruptcy), the lessee of the property is subject to recognition as a person controlling the debtor, unless he can reasonably justify a significant economic difference between the price of the concluded contract and other transactions on the market.

Another example is when the debtor’s controlling parties will be recognized as his interconnected counterparties, members of a group of companies, who, through unreliable document flow, transferred the debt burden, including the tax burden, to the bankrupt debtor.

A person who owns less than 10 percent of the authorized capital cannot be recognized as controlling the debtor.

Protection of interests in bankruptcy (subsidiary liability)

Basic principles of bringing to subsidiary liability for the inability to fully repay creditors' claims

The person controlling the debtor, due to whose actions (inaction) it is impossible to fully repay the claims of creditors, bears subsidiary liability, subject to the presence of guilt . The controlling person must prove the absence of guilt. This position of the law literally obliges the person brought to subsidiary liability, independently and/or through a representative, to take an active part in the judicial process, to collect and present relevant evidence.

When establishing the culpable behavior of the defendants in the bankruptcy of the debtor, the court takes into account:

Did the defendant’s exercise of his powers lead to negative consequences for the debtor and his creditors, did the scale of the negative consequences correlate with the scale of the debtor’s activities, did the defendant’s decision entail a fundamental change in the structure of the debtor’s property.
Is the defendant the initiator of the guilty behavior and (or) a potential beneficiary of the negative consequences arising in connection with this.

The innocence of the defendant can be justified and proven by the fact that the person acted in accordance with the usual conditions of civil transactions, in good faith and reasonably in the interests of the debtor, its participants (founders), without violating the property rights of creditors, and, if he proves that the actions were taken to prevent even greater damage interests of creditors. In other words, the person controlling the debtor by law retains the right to protect his business decision, that is, the right to prove the compliance of his decision with the established practice of application.

For example, the alienation of an organization's assets (fixed assets) that resulted in bankruptcy, the cost of maintaining which, due to the current economic situation, exceeds the profit gained, can be recognized as a bona fide action by the debtor's manager, aimed at preventing even greater damage to creditors in the form of an increase in accounts payable.

In addition, the person involved is not deprived of the right to appeal to the fact that the debtor’s bankruptcy is due solely to external reasons: financial crisis, accident, natural disasters, unfavorable market conditions, etc.

The principles of subsidiary liability under consideration do not relieve the initiator of bringing to subsidiary liability (the applicant) from justifying the existence of a cause-and-effect relationship between the alleged guilty actions and the onset of bankruptcy of the debtor.

It would be logical to assume that prosecution is possible only in the case of a direct relationship between the actions of the controlling person and the onset of objective bankruptcy. As noted earlier, judicial practice is really based on assessing the degree of influence of the controlling person, as well as the establishment or absence of a cause-and-effect relationship between actions and the resulting consequences. At the same time, the law establishes significant exceptions in the form of rebuttable presumptions in the matter of identifying a cause-and-effect relationship.

Thus, it is assumed that full repayment of creditors’ claims is impossible due to the commission of actions (inaction) and, as a consequence, the occurrence of the negative consequences listed below.

Significant harm was caused to the property rights of creditors as a result of the commission or approval of one or more transactions of the debtor. For example, concluding or approving transactions on obviously unfavorable terms or with a “one-day company”, making obviously unprofitable transactions or clearly not in line with the interests of the debtor. Significant damage is recognized as damage caused by transactions with assets in an amount equivalent to 20 - 25% of the total book value of the debtor's property.

It should be noted that in order to raise the issue of bringing to subsidiary liability on this basis, it has no legal significance the fact whether the transactions were previously disputed in court with a view to declaring them invalid.

Accounting and reporting documents, as well as documents whose storage was mandatory, are missing by the time supervision is introduced or a decision is made to declare the debtor bankrupt, or they do not contain mandatory information, or the information is distorted, which significantly complicates bankruptcy procedures. Negative consequences imply the inability to determine and identify the debtor's main assets, the inability to identify suspicious transactions or establish the content of decisions taken by the debtor's authorities.

The person responsible for the organization of maintenance, accounting and storage of documents will be held vicariously liable. The “risk group” includes the general director as the head of the debtor economic entity and the chief accountant if it is proven that he has the specified powers.

The debtor is brought to tax liability for non-payment or incomplete payment of tax amounts, and the amount of additional assessments is more than 50 percent of the total amount of the principal debt to third-priority registered creditors. In this case, the executive body that headed the debtor during the period of commission of tax offenses is held accountable.
The controlling person has not entered or entered inaccurate information into the unified state register of legal entities or the unified federal register of information on the facts of the activities of legal entities. It is important to note that the person held accountable has the right to justify that the identified deficiencies did not lead to significant difficulties in carrying out bankruptcy procedures and that they cannot be the basis for bringing to subsidiary liability.

Thus, the commission of the listed actions and the resulting consequences are, by default, regarded by law as the causes of objective bankruptcy.

The person held accountable independently proves the absence of factual grounds for bringing him to subsidiary liability. Ignoring this rule or passive behavior in court when considering a case will entail the inevitable imposition of subsidiary liability on persons within whose competence the issues were raised.

The amount of subsidiary liability established for a controlling person or persons found guilty is equal to the total amount of claims of creditors included in the register of creditors' claims, claims for current payments that have not been repaid due to the insufficiency of the bankrupt debtor's property.

Taking into account the above, it can be stated that the mechanism for bringing to subsidiary liability in bankruptcy is similar to other branches of law and presupposes the mandatory presence of: - a subject of liability (a person controlling the debtor); – committing guilty actions (inaction); consequences in the form of bankruptcy; — the presence of a cause-and-effect relationship between an action (inaction) and consequences. A significant difference in the principle of subsidiary liability in bankruptcy is the shift of the obligation to prove guilt from the initiator to the defender. The person brought to subsidiary liability must himself present in court evidence of the absence of innocence.

Judicial practice in cases of subsidiary liability of the debtor's director

Complicity of persons controlling the debtor

If repayment of creditors' claims is impossible due to the actions of several persons controlling the debtor, they bear subsidiary liability jointly and severally.

For example, in the event of a transaction being concluded at a deliberately undervalued value, both the general director of the debtor and the persons who approved this transaction due to the presence of appropriate authority, for example, members of the board of directors, will be jointly and severally liable.

If several persons controlling the debtor acted independently of each other, and the actions of each of them were sufficient to cause objective bankruptcy of the debtor, for example, the actual owner of the business gave instructions to work with shell companies, the general director carried out the withdrawal of the debtor’s assets, and the chief accountant deliberately misrepresented accounting data on the availability of fixed and working capital, then the named persons will bear subsidiary liability jointly and severally.

In addition, if the controlling persons acted independently, and the actions of each of them were not enough to cause objective bankruptcy, these persons are subject to subsidiary liability in the event of bankruptcy of the organization in shares proportional to the amount of damage caused.

Decision to refuse to bring to subsidiary liability

Decision to refuse to bring to subsidiary liability for failure to transfer documentation

Decision to refuse to bring to subsidiary liability

Who is responsible for the obligations of a legal entity?

People who directly managed the company officially. Their roles often include shareholders, members of the Board of Directors, top managers, owners and founders, and directors.
As a rule, their involvement or non-involvement in the ruin is proven:
- by studying concluded transactions;
by orders issued within the company;
under concluded contracts on behalf of the company;
according to accounting documentation.
People who remained in the shadows, but had material benefits from business. These are founders, co-founders (former), relatives of managers, friends and a circle of business partners who officially manage other companies or work in another field.

As a rule, they bear subsidiary liability if the manager proves certain facts:

the property of the suspects was acquired using company assets. For example, the father is the director of an LLC. On the 11th, he withdraws 30 million rubles from his account, and on the 15th, his 18-year-old unemployed son gets luxury housing in the center of Moscow;
the manager bought a beauty salon at the expense of the company’s assets; and six months later he gave it to a certain citizen from Saratov who came to Moscow to “enroll.” The deal was formalized through Rosreestr;
family members of the subsidiary debtor are not poor people. But during a period of serious financial difficulties, they continued to pamper themselves with luxurious things and gifts, although they had already accumulated large amounts of debt.

The subsidiary liability of the property owner comes into force if it can be proven that the objects were purchased with the company’s money. A son, a daughter, a wife, and a mistress will be brought to justice—the status does not matter.

The owner of the property does not bear subsidiary liability if it is possible, for example, to prove that the property was purchased with personal money, was inherited, and so on. Special importance is given to documentary evidence.

Under what conditions can one be brought to subsidiary liability?

Within three years after completion of the bankruptcy procedure, if controlling persons are identified and the creditors' claims are not satisfied.
During the bankruptcy procedure, when the amount of creditors' claims is established and the actions of specific persons whose actions led to bankruptcy are identified.

The arbitration manager conducting the bankruptcy procedure will form the bankruptcy estate and understand the circumstances of all the problems. He may file a claim for vicarious liability if it turns out that the bankruptcy estate does not cover the debt. And it is the difference between these amounts that can be recovered from the controlling persons.

Overestimation of the authorized capital of JSCs and LLCs will also be considered subsidiary liability.

The Ministry of Economic Development has prepared amendments to the laws regulating the formation of authorized capitals of companies that are registered in Russia in the form of joint-stock companies (JSC) and limited liability companies (LLC). The Ministry of Economic Development is going to introduce into the regulations governing the formation of the authorized capital of companies a provision that co-owners of the business and appraisers will be held vicariously liable under a new article. Now they will be liable for the company’s debts if the value of assets contributed in the form of property and securities is overstated.

Liability will accrue for five years from the date of registration of the company, as well as with an increase in the authorized capital. The amount of liability must be established within the limits of the value of the inflated property contributed to the capital. The Ministry of Economic Development proposes to make such amendments to the laws “On joint stock companies”, “On limited liability companies” and “On state registration of legal entities and individual entrepreneurs”.

At the moment, the assessment of non-monetary assets contributed to the authorized capital is not always required. The Ministry of Economic Development proposes to make it mandatory.

The amendments also change the list of property that can be used to pay for shares. Instead of securities and property rights (or other rights with a monetary value, which are now mentioned in the law on joint-stock companies), the Ministry of Economic Development proposes to indicate the following assets: “Shares (shares) in the authorized (share) capitals of other business companies and partnerships, state and municipal bonds, as well as exclusive and other intellectual rights and rights under license agreements subject to monetary value.”

Who can hold the debtor accountable?

This is usually done by an arbitration manager. It is he who studies the circumstances of bankruptcy, collects all the information about transactions, controlling persons and their property. He files an application for subsidiary liability on his own initiative or at the request of creditors.

If a company declares bankruptcy itself and appoints a receiver, there is a risk that he will act in the interests of the debtor. If the creditor considers the actions of the arbitration manager to be biased, he can himself file an application for subsidiary liability. But first you need to order an examination that will reveal signs of financial dishonesty of the debtor or other circumstances “not noticed” by the arbitrator.

The initiators of the involvement may also be employees of the debtor company (former and current), bankruptcy creditors and authorized bodies (for example, the tax inspectorate).

Types of liability and consequences

In general there is a division:

Vicarious liability is financial liability that passes to other persons as a result of their malicious actions.
Joint and several liability is the division of financial responsibility into equal shares according to the number of people held accountable.

The law provides that several persons may be held liable for subsidiary liability, and they will bear it jointly. What does it look like?

Let's say a company went into bankruptcy with a debt of 120 million rubles.
Having understood the circumstances, the court decided to hold 3 persons accountable: the chief accountant, the director and his wife.
As a result, each of the culprits now owes 40 million rubles.

How to write off subsidiary liability from an individual

If you are brought in as a subsidiary defendant for the debts of a legal entity, you can admit the claims and begin to repay the debt, or use various methods of defense.

Let us note that in the last 2-3 years, the total number of bankruptcy cases with recovery under subsidiarity has increased sharply. The courts protect the interests of creditors, especially if the controlling persons do not provide evidence of their innocence.

Below we will tell you how to avoid problems when filing for bankruptcy and achieve release from obligations.

Proper preparation for bankruptcy

It is better to assess all the risks in advance than to prove your innocence in court. Before filing for bankruptcy, we recommend:

contact lawyers, conduct a comprehensive review of all documents and transactions over the past 3 years;
order an independent audit of reporting and financial and economic activities, receive a report or conclusion on the absence of violations;
find an opportunity and pay off debts on transactions that are in doubt. At least partially;
Conduct an independent assessment of the company’s property and receive an appraiser’s report;
avoid dubious transactions and obtaining loans immediately before filing for bankruptcy.

It is better to carry out all checks with the support of lawyers. You may not pay attention to some of the nuances of the case. But they are the ones who can decide the outcome of the process. If the risk of being held vicariously liable is too great, it is better to refrain from filing for bankruptcy. For example, you can get rid of a troubled company with debts through sale or transformation.

Appeal against collection

If creditors have already filed an application for subsidiary liability, immediately contact a lawyer. You can hire him to represent your interests in court, prepare evidence, file objections and complaints.

When considering an application in court, you can refer to the following arguments:

on reports and conclusions of auditors, materials of own audits;
on the materials of field and desk audits of the Federal Tax Service, if they did not reveal any violations in reporting;
to carry out all transactions and make decisions within the normal business risk;
to skip the statute of limitations for individual claims included in the register of creditors;
the lack of adequate evidence of debt;
for incorrect calculation of the amount of debt presented for collection.

It is better to choose the exact defense tactics together with a lawyer. If the judge nevertheless granted the application, you can file an appeal. If it was not possible to achieve a positive decision, you can ask the court to defer or install payments.

What is subsidiary liability in civil law?

Now about the consequences. The concept of subsidiary liability is enshrined in Art. 399 of the Civil Code of the Russian Federation, and is defined as an auxiliary type of liability. Applies if the main debtor - the company itself - is not able to bear responsibility for its actions. We are talking about a company that is undergoing liquidation in bankruptcy, and after that it is excluded from the unified register of legal entities - the Unified State Register of Legal Entities.

The consequences of subsidiarity are very serious.

You can't get rid of debts. You may frivolously think, “I’ll go through bankruptcy, everyone’s doing that now,” yeah. Bankruptcy will easily free you from unsustainable loans, but not from debts transferred from the company. They belong to the category of indestructibles, and in a sense they can be dubbed eternal. As a rule, these amounts are from 100 million rubles per person.
Subsidiarity goes hand in hand with criminal prosecution.

The process of proving the intentionality of a company's bankruptcy occurs as follows:

temporary management is introduced;
third-party expertise is hired to conduct the audit;
auditors check the state of affairs, and if serious violations are detected, they are obliged to contact law enforcement agencies;
Then a criminal case is opened, and the controlling persons are brought to justice.

Amendments to the law “On Bankruptcy”, introduced to the State Duma in the spring of 2021, are written in such a way that the new legislation will focus not on bankruptcy and writing off debts of companies and individuals. persons, but for their restructuring. That is, the courts will study the possibility of restoring the solvency of legal entities under a microscope. They will find fault with debts “especially carefully.” And, most likely, the list of debts that will eventually have to be paid will expand.

They are usually charged with forgery, fraud, and deliberate bankruptcy. The charges are quite serious and it is very difficult to get rid of them.

When can subsidiary liability of founders and directors be recognized?
The financial manager and other interested parties can initiate the procedure within 3 years. The countdown begins from the moment the bankruptcy proceedings begin.

For what can a controlling person be held vicariously liable?

Vicarious liability arises if:

the company entered into transactions that caused creditors to suffer losses;
the organization has problems with accounting: documents are distorted, not submitted on time, or they do not exist at all - and this led to the bankruptcy of the company;
the company's management did not file a bankruptcy petition on time;
the company specifically declared itself insolvent without real reasons (fictitious bankruptcy);
the organization violated tax, administrative or criminal regulations that led to the debt;
the legal entity did not submit information to the Unified State Register of Legal Entities or Fedresurs (or submitted false information), which creditors used to assess the financial and reputational reliability of the debtor;
the company has somehow lost the incorporation or other documents about the company, and this has led to bankruptcy or makes it difficult to locate the organization's property.

What does it mean to be able to determine the debtor’s actions?

A subsidiary defendant is recognized as such if, by virtue of his competence or for other reasons, he had the right to determine the actions and policies of the bankrupt company. That is, this was facilitated by:

official position - for example, financial director, chief accountant, person who had the right to elect or appoint the head of the debtor;
powers to carry out transactions on behalf of the debtor, including in accordance with regulations, fixed by special powers or on the basis of a power of attorney;
relationship of kinship or close position with the debtor, manager or members of the management body;
another status that allows influence on managers or members of their families, including by force of coercion or other determining influence.

The arbitration court, if there are compelling reasons, may recognize such status of other persons. At the same time, protection from subsidiary liability always applies to entities whose participation is limited only to owning less than 10% of the authorized capital and receiving standard income from activities.

It is possible to recover money from dummies, but is it necessary?

The arbitration court held the general director to subsidiary liability in the amount of 16 million rubles.
In this regard, the former head of the company filed an appeal to a higher court, in which he referred to the fact that he only played the role of a dummy director (nominee manager), and the actual head of the enterprise was another person. According to the appellant, it is from the actual director that damages must be recovered, and the nominee director simply does not have the amount specified in the court decision. The appellate court did not take into account his arguments. By virtue of paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 No. 53, the nominal manager is not completely exempt from subsidiary liability, but only bears this responsibility together with the actual manager.

The Higher Court found significant errors in previous judicial decisions. The defendant repeatedly pointed out to the courts the need to involve the actual beneficiary of the debtor as a co-defendant, citing electronic correspondence. But the judges ignored his demands.

In addition, the district court indicated that the courts of the first and appellate instances should have assumed the director's nomination at least due to his permanent residence outside the location of the company, on the territory of another constituent entity of the Russian Federation.

The cassation court noted that bringing to justice only the nominal head of the debtor is not recognized as aimed at protecting the property interests of creditors. It is problematic to recover money from a person who has not received serious economic benefits from the activities of the organization formally headed by him.

Within the meaning of the legal position set out in the Ruling of the Supreme Court of the Russian Federation dated December 27, 2018 No. 305-ES17-4004(2), a judicial act, the prospect of execution of which is obviously low, essentially represents a fiction of judicial protection, which is not consistent with the objectives of legal proceedings.

Based on this, the higher court overturned previous judicial decisions.

Resolution of the Arbitration Court of the West Siberian District dated September 16, 2019 No. F04-3095/2019

How to get away from a subsidy

To find out how to avoid subsidiary liability for the founder or head of an organization, you need to carefully study the legislation. Changes have recently been made to it aimed at suppressing shadow business, and it is becoming increasingly difficult for citizens directly related to the main debtors to defend their rights

and interests. To achieve risk minimization, you need to follow a number of rules:

Do not sell or participate in the sale of company assets at artificially low prices.
If accounting documentation is lost, damaged or stolen, take all steps to restore it.
Refuse to enter into transactions with affiliates that are obviously unfavorable for the company.
When choosing counterparties, be vigilant and avoid interactions with the so-called. "cashers".
Do not enter into fictitious transactions.
Regularly monitor the status of debts to creditors, avoid delays, take all actions to pay off debts, and, if necessary, challenge them in court.

Persons who meet certain criteria can resort to protection from subsidiary liability in accordance with the norms of Russian legislation:

who acted when the organization applied for its loan guarantor
;
In this case, the write-off of subsidiary liability will occur in the event of bankruptcy of an individual. A business loan with a guarantor - an individual is not a full-fledged subsidy, and it can be written off.
if at the time of attraction to the subsidiary in relation to the additional debtor there was a criminal case has been initiated
related to the finances of the debtor organization (for example, under Article 159 of the Criminal Code of the Russian Federation “Fraud”).
In accordance with Russian legislation, a citizen cannot be punished twice for one crime. It follows from this that he will not be able to be awarded the debts of others.

To protect your rights, you need to file a petition to remove the subsidy. Exemption from subsidiary liability is granted by the arbitration court

. Moreover, depending on the circumstances, the person controlling the debtor (KDL) may not be released from liability completely, but only partially - including the cancellation of the delegation of obligations for the time during which the KDL did not manage the debtor enterprise.

Is it possible to write off a subsidy at all?

Often businessmen do not even know how to write off the debts of organizations, so they assume that the usual bankruptcy procedure will help them. But if they are recognized as persons controlling the debtors, then subsidiary liability will lie with them until the debt is repaid

Collection of company debts can be carried out for life if the citizen does not have assets that can be sold and the issue closed. Therefore, when liquidating an enterprise with debts, it is important to take into account all the risks and concern yourself in advance with the question of how to remove subsidiary liability, or better yet, how to get away from it and not be involved in principle as a subsidiary.

Is amnesty or appeal possible?

It is important to appeal against subsidiary liability immediately after receiving the relevant notification from creditors. The procedure involves filing a claim in court, where it will be necessary to present a strong evidence base confirming that the individual is not involved in the organization’s debt.

During the first wave of coronavirus restrictions, many were counting on an amnesty for the subsidy and its write-off in connection with the crisis caused by the pandemic. Indeed, some citizens managed to evade subsidiary liability by proving that the increase in the company’s debt obligations was due to the lockdown

. At the same time, it was not erroneous management decisions that led to bankruptcy, but the general decline of the economy caused by numerous bans on certain types of business and forced self-isolation.

Ways to remove subsidiary liability

Many people don’t know how to get rid of their subsidiaries, so they are forced to pay off other people’s debts. To relieve yourself of this unbearable burden, you need to initiate legal proceedings. If you can provide the servants of Themis with strong evidence of non-involvement in the collapse of the company

, then it will be possible to reduce subsidiary liability to a minimum or get rid of it altogether. For this:

you will have to prove the conscientiousness
and reasonableness of your actions, the absence of malice and self-interest in them.
document the ordinary conditions of the transactions
, as well as the fact that all efforts were aimed at the prosperity of the organization and the fulfillment of its obligations to creditors.

The subsidy is not applied if there is a proven lack of intent in the actions of the additional debtor, as well as in case of violations of the bankruptcy procedure of a legal entity.

The issuance of a guarantee does not indicate bankruptcy

The bankruptcy trustee asked to hold the former manager of the debtor liable for subsidiary liability in the amount of 293 million rubles.
The general director did not transfer all the debtor’s documentation to the manager and entered into surety agreements in amounts that exceeded all the assets of the enterprise. According to bankruptcy law, these facts are grounds for collecting money from the former director because they violate the rights of creditors. The courts of three instances came to the unanimous conclusion that the failure to transfer documentation to the arbitration manager and the conclusion of unprofitable transactions led to the impossibility of repaying the creditors' claims, therefore the former director should be held vicariously liable. The courts rejected the defendant's objection to the confiscation of documentation from him by investigative authorities. As the courts indicated, the manager did not justify the investigative actions within which the seizure of business papers was carried out.

The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation did not agree with the opinion of the lower courts. When the transfer of documents becomes impossible due to factors beyond the control of the director, he is not required to prove malice. If law enforcement agencies have seized the debtor’s documentation, then he does not have the opportunity to fulfill the obligation to transfer the documents. The manager referred to such objective obstacles. He drew attention to the fact that the case file contains a request to the Economic Security Bureau and the PC of the Main Directorate of the Ministry of Internal Affairs for the Moscow Region and the response of this body, according to which the powers of the director as the head of the debtor have been terminated, due to which he is not provided with information about investigative actions. The defendant noted that during the seizure of documents, the investigative authorities did not issue copies of the seizure protocol.

As the judge of the Supreme Court pointed out, the issuance of a guarantee by the debtor is not a basis for bringing the manager to subsidiary liability, even if the size of the obligation, the fulfillment of which is secured by the guarantee, exceeds the size of the debtor’s assets. This is explained by the fact that when lending to one of the members of a group of persons, all its members ultimately receive benefits in one form or another, since in the aggregate the property base of this group increases.

However, the lower courts ignored the above-mentioned argument of the manager and did not find out whether the issuance of a guarantee with the borrower was conditioned by the debtor with the borrower or whether the relationship had another economic reason. The Supreme Court returned this case for a new trial.

Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated September 30, 2019 No. 305-ES19-10079