In the case when the LLC is not able to fulfill its obligations, and the delay has already amounted to more than three months, it is considered incapable of satisfying the claims of creditors. Authorized persons may initiate bankruptcy proceedings of legal entities. faces. This procedure is governed by Federal Law No. 127-F3 of October 26, 2002 on Insolvency (Bankruptcy). This article will focus on the bankruptcy of an LLC with debts.
Start Bankruptcy Procedure
Bankruptcy proceedings are considered to have commenced from the moment when the corresponding application was submitted to the Arbitration Court.
To initiate proceedings, it is necessary to observe several conditions:
- the minimum amount of debt must be at least 300,000;
- the delay should be no more than three months.
The initiative to initiate proceedings may belong to: the debtor himself, the creditors, the authorized body. In some cases, declaring an LLC bankrupt may be the only way out in the event of a significant amount of debt. It is much easier bankruptcy LLC without debt. When the procedure ends, all debts are written off and considered repaid. This happens even if the creditors have not actually received in full the required payments for the obligations undertaken by the bankrupt LLC.
How is it more profitable to apply?
It is most profitable for an enterprise to file an application with the court on its own and demand recognition of the organization as bankrupt. Thus, the debtor will have the opportunity to choose a loyal manager, which will help increase the chances of a favorable outcome. The lender has the right to file an application while the LLC is still continuing operations. Then, in case of delay in payment, he will be able to send his manager, who will be able to control the activities of the debtor in full and will act exclusively in his interests. The state bodies that have the right to demand the initiation of proceedings to declare a LLC having large debts bankrupt are the tax service and the prosecutor's office.
In this category of cases, creditors are persons to whom the LLC has obligations of any kind: citizens whose health or life was damaged by the LLC; counterparties of supply, sale and other contracts; organizations where obligatory payments should be paid; persons having the right to claim to fulfill non-monetary obligations; the authors; employees of the enterprise.
Step-by-step instruction
In order to recognize the bankruptcy of an LLC with tax debts to various organizations and the bank, it is necessary to perform a number of certain actions. First you need to submit an application. If it is provided by the debtor, he must indicate: details, name of the court, property data, total claim of creditors, information on legal proceedings in respect of the debtor, reasons for the resulting debts, explanations of the need for this procedure, debts on obligations due to harm to health and lives of citizens, all debts for obligatory payments.
All information, including petitions, which has something to do with a particular case, must be added to the application. If the creditor used the right to submit an application, you must indicate:
- details of the alleged manager and his data;
- details of the debtor;
- name of court; proof of;
- creditor details;
- the presence of other court decisions;
- requirements
- fines;
- terms provided for payments;
- the basis on which the requirements are made.
Stage number 2
So, we describe a step-by-step instruction for bankruptcy of an LLC with debts. The second stage involves a court hearing at which a bankruptcy trustee is appointed to establish supervision of the enterprise. This measure actually prevents the possibility of fictitious bankruptcy, but it cannot last more than seven months. Supervision is carried out directly by the appointed bankruptcy trustee, whose decision can be challenged. This can be done by the meeting of creditors of the debtor. Conducting any LLC operations with money or its property is permissible only with the consent of the manager. This consent is in writing.
Stage number 3
The next stage of the LLC bankruptcy procedure with debts is bankruptcy proceedings, when the manager forms and studies the bankruptcy estate, namely, compiles a list of LLC assets that will be used to further repay the claims of creditors. The same stage serves as the starting point for its implementation.
The law establishes the priority, based on which, the requirements are satisfied: the requirements for current payments are satisfied out of turn; disbursement payments in the first place; social benefits in the second; mandatory payments in the third, and claims for other obligations in the fourth.
Bankruptcy LLC without property
In the event that the organization’s property is insufficient or the company has begun the bankruptcy procedure of the LLC with debts without any property, all the same, the debts will be written off and considered to be paid off. In the case when the bankruptcy trustee seems that the company is potentially able to continue functioning, he adds a stage of financial recovery. At the same time, measures are developed that can identify the reserves of the enterprise and increase its effectiveness. For example, staff reductions may be carried out or unprofitable operations may be closed. This procedure is called reorganization. The maximum duration is two years. In the event of bankruptcy with debts, the LLC is liquidated. Very often, this method is the only legal way to pay part of the debt when the company does not have enough property.
Management responsibility
The chief accountant, manager, deputy managers may be held liable for bankruptcy of an LLC with tax debts. This liability is called subsidiary, but this measure is not always applied. For this, it is necessary that there are a number of conditions:
- causal relationship;
- creditors losses;
- the presence of guilt;
- actions committed by management aimed at infringement of creditor rights;
- untimely submission of a statement to the court.
When an untimely application is submitted to the court, and creditors incurred losses as a result of improper actions performed by the management, then this management itself should be responsible for improper performance of official duties. In this case, the principle of guilt comes into effect. At the trial, management will need to prove that it has taken all possible measures.
We should not forget that the tax authority has all the necessary information on the transactions of the LLC and that innocence should be defended very carefully. The tax service very closely monitors cases in which there is a requirement that the company be declared bankrupt in connection with the suppression of the activities of one-day firms that profit in their favor. If fault is not proven, management will not be held responsible.
What will happen to the staff?
If the organization has employees, it is the responsibility of the management to notify them of the imminent bankruptcy of the LLC with debts and the dismissal of employees.Established terms depend on the grounds on which they work.
For employees engaged in labor activities under an employment contract, the term may not be less than two months. If the contract was concluded for a period shorter than 2 months, then the employee can be notified in three days. When seasonal employees work at the enterprise, they must be notified at least one week in advance. Notifications are required in writing, and the deadline starts counting down the very next day after the date indicated in it. Including the head must notify the employment service. He provides all the necessary personnel data, including qualifications, working conditions, position and salary.
Which employees are subject to dismissal?
Dismissal is subject to all employees to a single on the basis of termination by the employer of the employment contract unilaterally. Employees do not need to wait until the bankruptcy procedure of the LLC with debts is over; they can terminate the employment contract in advance. And still, they will be entitled to compensation.
When the allotted time expires, the management of the LLC issues an official order informing of the dismissal of employees. Each employee under signature is required to familiarize themselves with this order and make an entry on the termination of cooperation in the workbook.
Dates and cost
On average, this procedure takes about a year, and the cost of bankruptcy of LLCs with debts is calculated depending on the amount of debt as a percentage. However, it still cannot be less than 30,000 per month. This amount includes managerial remuneration and other expenses.
During the liquidation operation, the assistance of specialists should not be neglected. Of course, this will amount to additional costs, but if the bankruptcy procedure is carried out independently, and then errors are identified, this can serve as a reason for imposing a punishment and even criminal liability. Moreover, when applying to the Arbitration Court, it will be necessary to pay the state fee, which is provided for in article 331.21 of the Tax Code of Russia in the amount of 6 thousand rubles.
Changes in 2016
In 2016, a lot has changed:
- Now the liquidation procedure of the LLC should be initiated only by the head, but not by his employees.
- If another person responsible for the process is appointed, this is also done by the director of the organization.
- The publication of the closure can be carried out after the relevant application has been submitted to the tax authority.
- You can notify of the interim balance only after 60 days from the presentation by the creditors of the requirements and the entry into force of the decision to close force, or after they have conducted a tax audit and drawn up the relevant act.
- During bankruptcy, a resale of the share is often carried out. For this, from the beginning of 2016. you need a notarial certificate, which is issued after you have verified the payment of the share by all its participants.
So, in this article we learned about the bankruptcy procedure of an LLC that has debts to the bank and does not have the ability to pay them, as well as the price of bankruptcy of an LLC with debts.