Three most important legislative changes for business in 2017

Exclusion of a company from the Unified State Register of Legal Entities for false information

September 1, 2017 amendments to the law on state registration of legal entities and individual entrepreneurs came into force.

The essence of the changes

If an entry was made in the Unified State Register of Legal Entities about your company about the unreliability of information (any: about the address, head, his passport data) and the entry about the unreliability of information is not removed within 6 months from the date of its appearance, the tax inspectorate has the right to decide on the liquidation of the company. & nbsp;
The liquidation procedure is the same for companies with false information in the Unified State Register of Legal Entities and inactive firms.

Why is this important for all companies? 

An entry about the unreliability of information may appear in the Unified State Register of Legal Entities for various reasons (and you may not even know about this entry). 
You indicated one address as a legal one, but in fact the office is located at a different address. Yes, the Unified State Register of Legal Entities indicates the address for contacting a legal entity, and you receive correspondence at the legal address and no one is prohibited from having several offices. But if the tax inspector comes to the company’s registration address and does not find a sign with your company’s details there and/or there is no director/representative of the company with formalized powers, the inspector will decide that the registration address is unreliable. The tax authorities will ask you to clarify the situation by sending a notification by mail or e-mail. If you do not respond within 30 days, or the inspector considers the response incomplete, you will receive a record of the unreliability of information about the company in the Unified State Register of Legal Entities.
Or, for example, the owner of the company had a conflict with the director of the company. The director filed an application "on his own", took his work book and left, slamming the door. The owner did not accept the case from him, did not manage to appoint a new director, or for other reasons did not make changes to the Unified State Register of Legal Entities about the head of the company. The conflict with the former director is gaining momentum and the offended former director goes to the tax office with a statement that the information about his management of the company is invalid. Based on such a statement, an entry is made in the Unified State Register of Legal Entities about the unreliability of information about the company. 
If within 6 months you do not make changes to the Unified State Register of Legal Entities, your company is a candidate for compulsory liquidation.

Our recommendations

1. Regularly track information in the Unified State Register of Legal Entities about your own company.
2. In time to make changes to the Unified State Register of Legal Entities.
3. If 6 months have passed since the entry about the unreliability of information in the Unified State Register of Legal Entities and a decision on the upcoming exclusion has already been made in relation to your company, write objections to the exclusion and enter up-to-date information in the Unified State Register of Legal Entities.

Document: Federal Law of December 28, 2016 No. No. 488-FZ amends the Federal Law of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs” (subparagraph “b” paragraph 5 of Article 21.1 was added).

Your company's debts will have to be paid out of your own pocket

From December 1, 2016 amendments to the Tax Code came into force, but the consequences of applying the amendments in practice made themselves felt already in 2017. As a result of an almost “technical” amendment to paragraph 2 of Article 45 (the word “organizations” was replaced by the word “persons”), the tax authorities received broad powers to collect debts to the budget from directors, participants and other dependent persons of the debtor company.

How it works

The tax authorities have revealed that the company has a tax debt that cannot be fulfilled at the expense of the debtor company (there is neither money nor property, and the measures for the forced collection of the debt from the debtor have not yielded results). But since the tax authorities have access to all information about cash flows on the settlement accounts of organizations and individual entrepreneurs, USRN data, traffic police databases and other resources, they can easily trace where the money and property have gone. They even know where the debtor's employees have gone. Having tracked the chain of transactions and having reached the current owner of the property and resources of the debtor, the tax authorities go to court with a demand to collect tax debts from the current owner of the assets (organization or individual).
April 2017 The Federal Tax Service of Russia even sent out to lower inspectorates a guide to action on collecting debts from related parties using the case of Avtoritet-avto LLC as an example. 
The transfer of business from a debtor company to a newly registered company will not help to hide from the claims of the tax authorities. Especially if you, cherishing your business reputation and brand, create a company with a consonant name, at the old address, show your clients the “old”, well-known director. And the very fact that the company is new, and all the clients are “old”, who previously worked with the debtor, is also a sign that the new company is interdependent with the debtor and must pay its debts.
For participants and directors of companies, amendments to the law are scary in cases where they received money from a debtor for rent of property, dividends, loan payments and so on. All of these payments, according to the tax authorities, are "withdrawal of funds in order to evade" the collection of tax arrears from the debtor.

Our recommendations

1. Resolve disputes with the tax authorities, trying to eliminate additional charges or at least reduce their size. “Transferring a business” to a new company will not save either the business or its owner.
2. And if the “transfer” has actually already taken place and the dispute with the tax authorities is lost, then you need to prepare for the new company or its owner to receive a claim for the collection of tax debts from the old company. In this "creative" issue, the most correct thing is to work together with lawyers and auditors.

Document: paragraph 2 of Art. 45 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated April 17, 2017 N SA-4-7 / 7288@.

Sometimes the debtor is gone, but there are still debts

Summer 2017 large-scale amendments to the Bankruptcy Law came into force - the grounds and procedure for bringing former directors and owners of bankrupt companies to liability were detailed. From July 1, it became possible to hold such persons liable under bankruptcy rules without a bankruptcy procedure: if there is no money to carry out the procedure or the bankruptcy procedure is completed, and then facts are revealed that make it possible to hold the former bankrupt executives liable - the withdrawal of assets or the concealment of receivables, for example ( Law 488-FZ came into force). Since July 28, it has become possible to hold former managers and actual owners liable not only for longer, but also for more “old” cases, on a larger number of grounds and with more diverse consequences (Law 266-FZ came into force).

1. Previously, it was possible to hold liable a person who managed the debtor for the last 3 years before the initiation of bankruptcy proceedings. Now - persons who managed the debtor for 3 years before the appearance of signs of bankruptcy (clause 1, article 61.10 of the Bankruptcy Law). In this case, the general civil limitation period does not apply (3 years from the date of the violation). That is, creditors have the opportunity to prove that the company began to meet the signs of bankruptcy 5-7 years before the initiation of bankruptcy proceedings, but continued to conduct unprofitable activities and did not file for bankruptcy, all managers in these 5-7 years may be under attack. They will have to prove that they did not act to the detriment of creditors.
2. Not only managers and owners of companies, but also chief accountants and their close people may be under suspicion if creditors can prove that these persons could influence the decision-making of the debtor company.
3. The list of grounds for holding former managers accountable has been expanded. So, in itself, the presence of a bankrupt indebtedness to the budget (half or more of the total amount of the bankrupt's debt) or the failure of the head to eliminate the record of the unreliability of information about the company in the Unified State Register of Legal Entities is a reason to bring the former head to responsibility. The amount of liability is determined as the sum of all debts of a bankrupt (included in the register of creditor claims, declared after the closing of the register and the current claims of creditors).
4. The possibilities for creditors to file an application to bring the former executives of the debtor to liability have been expanded. If earlier such an application could be submitted by creditors or an arbitration manager in the bankruptcy proceedings, and an application for the recovery of damages could also be filed by the receivers during external administration, now in itself the initiation of bankruptcy proceedings and the introduction of supervision against the debtor allows creditors to start the process of attracting the former head to liability (clause 1, article 61.14 of the Bankruptcy Law).
5. The procedure for the adoption by the court of interim measures in the course of bringing the former head to justice has been settled. That is, when applying for liability, the creditor or the manager has the right to ask to seize the property of both the former leader himself and persons related to him. Based on the trends in judicial practice, creditors will demand seizure not only of the property of managers, but also of the property of their wives, relatives, other "nominal asset holders", proving that the registration of ownership of these persons was carried out precisely for such unfair protection of the assets of the head from the claims of creditors.
   This situation is especially dangerous for a business structured as a group of companies. The occurrence of problems in one of the companies of the group can lead to difficulties in doing business for all companies in the group. Previously, in practice, there were situations when, in a group of companies, property, employees, and revenue were transferred from company to company as needed. Lenders were left with nothing, since their counterparty turned out to be a shell company, and the property of other members of the group remained fell out of reach. Now such schemes turn out to be meaningless, because the formal ownership of the property by another company, and not by the debtor, does not matter. An emergency sale of the assets of a prosecuted person is also not available.
6. After holding the former manager (owner) liable, creditors have the right to independently decide the fate of his debt to the company:
• as before, collect the debt from the former director (by foreclosing his property and income in enforcement proceedings or even by filing a personal bankruptcy case against him) or sell this debt at auction;
• A creditor now has the opportunity to obtain a writ of execution for the amount of his claims against the debtor, according to which the debtor will no longer be a bankrupt company, but its former head. And then, within the framework of enforcement proceedings, to foreclose on the property and income of the former head, or file for personal bankruptcy, in which to challenge transactions for the withdrawal of assets.

Our recommendations

1. If an application for liability has been filed against you, do not try to quickly “throw off assets” and do not hope to “redeem” your debts from creditors through third parties. 
2. Take an active position in the process: it is necessary to prove the absence of corpus delicti (at least, illegal and guilty actions on the part of the leader). To do this, you need to contact lawyers who specialize in this particular category of cases (bankruptcy, arbitration practice).

Document: Federal Law of October 26, 2002 No. N 127-FZ "On insolvency (bankruptcy)" and amendments to it dated December 28, 2016 N 488-FZ and dated July 29, 2017 N 266-FZ.

Source: Avant-PARTNER RATING No. 4 dated 12.12.2017

Author

Denis Vasilievich Smotrin

Head of Bankruptcy, Taxes, Corporate Law Practice