Administrative liability for bankruptcy risks: deliverance of the director from disqualification

Recently, the risk of disqualification of directors for failure to file for bankruptcy of the company has become more and more pronounced.

Previously, businessmen have already had to deal with problems that can be created due to disqualification, due to various kinds of unreliability of the registration data about the company contained in the Unified State Register of Legal Entities.

Recently, the Federal Tax Service has begun to gain popularity in the practice of disqualifying businessmen for failing to file for bankruptcy of their companies in the event that a legal entity has debts.

One director turned to us for help, he is also the owner of the business. Said the IRS wanted to disqualify him. And he can't let that happen. Otherwise, he could lose control of the business.

In a situation where a company has debts to the budget for a long period, the tax inspectorate began to practice disqualifying directors for an unsubmitted bankruptcy petition.

The logic of the tax inspectorate in such a case at first glance looks ironclad: after all, there are tax debts and they are overdue, which means there is an unfulfilled obligation to apply to the court with a statement of self-bankruptcy. And for failure to fulfill this obligation, the director has administrative responsibility under the Code of Administrative Offenses of the Russian Federation.

For the most part, the tax business reacts passively to such attacks. At the initial attraction, the manager faces a fine of 5 to 10 thousand rubles. Well, who do you scare? However, with the repeated involvement of the director, a disqualification from six months to 3 years awaits.

Executives who are responsible for their future as top managers should not remain indifferent to such a risk.

In particular, a disqualified leader may completely fall out of business management and legally lose control of the firm. And no one needs reputational damage when working with partners and banks.

An interesting point is that a leader can be disqualified not only for tax, but also for ordinary business debts.

The complexity of the defense in such cases also lies in the fact that an administrative offense of this kind is a rather formal thing: if you did not file an application when you should have, then you will be attracted. And point. No lyrics.

In our case, the issue of punishing the director for the tax was fundamental. The stubbornness of the tax authorities sometimes created a sense of personal vendetta. From session to session, the tax office was obsessed with the idea that the director should be disqualified.

The director's defense, meanwhile, focused on the rational side of the dispute.

Firstly, the lawyers presented all sorts of evidence of the absence of an administrative offense. Namely, the absence of a situation of objective bankruptcy at the enterprise (even if there is an overdue tax debt). Along the way, the defense tried to convince the court of the inadmissibility of a formal approach to determining the moment when the obligation to file an application arises.

Documents were also presented on the presence of assets, receivables, which exceed the amount of unpaid taxes. It is shown that non-payment of taxes occurred due to non-payment from the budget under municipal contracts. And not at all because of the insolvency of the enterprise itself.

Secondly, the prosecution was accompanied by procedural violations. Thus, it followed from the documents that the director was not familiarized with the resolution on bringing to administrative responsibility either on receipt or by mail.

As for this case with the director, after a year of hard teamwork, the director managed to be defended. The Arbitration Court ruled that he should not be held liable in the form of disqualification.

In a situation of fierce confrontation, a significant formality outweighed the scales on the side of our principal - the evidence presented in the case file confirmed the fact that the director had not been notified of the time and place of drawing up a protocol on an administrative offense.

Based on the experience of our business, I would like to recommend to all managers:

1. Do not ignore bringing to administrative responsibility for failure to file a bankruptcy petition by the tax authority (neither the first, nor even the second).
2. At all stages of defense, prove the absence of a bankruptcy situation for the company (even if there are formal signs of bankruptcy).
3. Conduct a reasonable dialogue with creditors and not bring the situation to a state of uncontrollability.
4. Consider going to court to file for bankruptcy. This will further minimize the risk of bringing to subsidiary liability for failure to file a bankruptcy petition. Especially in a situation of growing debt.

Author

Denis Vasilievich Smotrin

Head of Bankruptcy, Taxes, Corporate Law Practice