A seminar on the "secrets" of the company's legal security was held in Kemerovo with the participation of Pavel Astakhov

On January 18, in Kemerovo (RK "Continent") a seminar was held for representatives of the business community, lawyers and accountants with the participation of the famous lawyer P.A. Astakhov, as well as Kemerovo specialists in the field of law:

• Head of OFAS Kukharskaya N.E.
• Judges of the Arbitration Court of the Kemerovo Region A.S. Kul
• Head of the third department for the investigation of particularly important cases of the Investigative Committee of the Investigative Committee of the Russian Federation for the Kemerovo Region Suleimanova F. F.
• A.V. Kryuchkov, Director of CPP YurInvest LLC
• and Chairman of the Bar "Yurproekt" Malinin D.A.

Pavel Astakhov spoke briefly about the main risks for owners and directors of Russian companies. He also touched upon the topic of subsidiary liability.

In more detail on the topic of bankruptcy and liability of persons controlling the debtor, the judge of the Arbitration Court Artem Kul spoke about the changed legal regulation (summer amendments to the Bankruptcy Law) and the emerging judicial practice. In particular, about the positions of the Arbitration Court of the West Siberian District, as well as the Supreme Court of the Russian Federation, set out in the “fresh” Resolution of the Plenum No. 53 of December 21, 2017 (the text of the document is available at link).

Dmitry Malinin, in his speech, tried to pay more attention to the protection of directors in disputes on bringing to responsibility - subsidiary or in the form of damages.

As a result of the presentation, the following conclusions were made:

1. Legislation and practice on attracting business executives for the debts of their companies has changed: now a legal entity is not an obstacle for collecting debts of companies directly from the head (legal or actual), and bankruptcy is not a means of easily writing off all debts.
2. The courts are quite loyal to the actions of the tax authorities: in cases of bringing the heads of companies to property liability, the likelihood of "shifting" the company's debt to its directors increases in the case of the participation of the tax authority (there are arrears in taxes, insurance premiums, penalties in the register of creditors' claims and fines).
3. You should not expect that the company’s lawyer will “pull out” any case and “beat off” all claims against the manager personally, and you should not “fight back” only with references to formal grounds (“the decision on a tax case should not be applied!..” and “the decision to refuse to initiate a criminal case on charges of committing a tax crime contains conclusions about the innocence of the head ...” - is not taken into account by the courts).
4. The "old schemes" - the transfer of contracts to a new company, the sudden "rewriting" of property from the director to other persons, the sale of the director's debt to the company for next to nothing - no longer work.

Briefly, recommendations for reducing risks for business leaders can be summarized as follows:

1. Realizing the risks of doing business that have become common for modern Russian enterprises ("tax claims", "bankruptcy", "personal property liability"), calculate all moves, as in chess: "director's move" - ​​"probable move of the creditor" ( tax office). In fact, any decision that is significant for a business and its creditors must have an economic justification (for example, for the sale of real estate - get an appraisal report, etc.).
2. In tax disputes, one must “fight” to the end and prove: a) the reality of the fulfillment by the counterparty of its obligations; b) exercising due diligence - taking all necessary measures for this by the director (appointment of responsible employees for checking counterparties, real control by the director over checking counterparties - endorsement of documents, etc.). Otherwise, tax claims against the legal entity turn into personal property claims against the manager.
3. In cases of bringing to property liability, prove the legitimacy of the actions of the director (submit explanations and documents on the reasonableness of the business decisions made, on the performance of actions within the framework of an economically sound plan to "rescue" the company).

The presentation of the Yurproekt Bar Association can be downloaded link.

My City TV report.

Persons

Dmitriy Alexandrovich Malinin