Liquidation of a legal entity is a procedure related to the completion of legal status. When this happens, the rights previously inherent in the legal entity simply disappear; they are not transferred to anyone. This is the key difference between liquidation and reorganization. There are two forms of liquidation of an organization: forced, voluntary.
What, how and about what?
About how voluntary liquidation is initiated and organized, tell the federal laws on LLCs, JSCs, non-profit organizations and the features of their activities. There is a Federal Law governing the registration of individual entrepreneurs and legal entities. It describes the procedures carried out in connection with the liquidation of the organization.
As a rule, the grounds for such an event are:
- unprofitable workflow;
- achievement of the results for which the company was organized;
- loss of interest in the company from its organizers;
- condition of assets;
- Transition of time frames conceived for the enterprise.
And if we force?
The forced process of liquidation of the organization is provoked by a court decision. This situation is possible when the company:
- works without observing the laws of the country;
- does not have licenses for its activities;
- works in an area prohibited by law.
The trial usually starts when a statement is received from the Federal Tax Service or the local government.
Representatives of state authorities may demand the liquidation of a legal entity only if their rights allow them to. Often, such a privilege is used in relation to unreliable entrepreneurs FAS, the Ministry of Finance, the Central Bank. The decision on the liquidation of the organization is formed by the body responsible for this. Which one is usually prescribed in the constituent documentation of a legal entity.
Eliminate without fail!
In some cases, even a successful company may face imminent liquidation. As a rule, this is due to incorrect compliance with laws. So, the conditions for the liquidation of the organization without fail:
- after a year from the date of registration, the authorized capital has not been fully paid;
- the company registered as a CJSC, LLC, but its staff has exceeded 50 people and from that moment a year has already passed, and the company has not changed its form of activity to OJSC.
Liquidation: we make a decision together
As a rule, the liquidation of a legal entity involves the holding of a general meeting, within which the possibility of liquidation as such is discussed, and they also decide who to include in the commission responsible for this process. The minutes of the meeting must indicate the reasons for the liquidation and the person appointed by the chairman of the commission.
In addition, the general meeting considers:
- timing of the liquidation;
- order of procedures;
- methods and terms in which notifications on liquidation of the organization are sent to creditors.
As soon as they select a commission, its chairman receives all the authority to conduct business on behalf of the organization. Typically, the liquidation of a legal entity is entrusted to the head of the company, staff lawyer, chief accountant, but you can include here selected persons from among the founders. As chairman, it is customary to choose the head of the company.
Liquidation in steps
A good organization liquidation plan usually involves the following steps:
- Notification of the state registrar.
- Alert lenders.
- Inventory.
- Dismissal of staff.
- Full calculation.
- Verification of tax payments.
Some of these steps can be divided into several. They also carry out a number of additional measures to eliminate the legal entity correctly, having “cleared” all the “tails”.
From the very beginning
The organization begins its activities during the liquidation period by sending a notification to the authority authorized to register legal entities. The written statement is made up by the heads of the company or those who are responsible for the decision on liquidation. Notification is necessary in order to update company data in a single register. According to the law, the leader has three working days from the moment when the meeting decided to liquidate the organization. This is stated in the 20th article of the federal law on the registration of legal entities and individual entrepreneurs.
The state authority records the updated information in the register as follows: “the organization is in the process of liquidation”. From this moment until the completion of the work is not allowed to change the constituent documentation of the company. In addition, this organization cannot become the founder of the company - it simply will not be registered.
Lenders must be in the know
As soon as the decision-makers decided to liquidate the organization, they should send official messages to all creditors of the company about what was decided at the general meeting. There is a special state magazine devoted to registration. A notification is sent to it, and the next issue will contain a publication about what is happening, including the timing.
The liquidation commission formulates a list of creditors. In her zone of obligations - not to miss anyone. Then they write official letters to everyone, reporting what is happening.
The commission should work
The organization’s activities during the liquidation period are, first of all, a well-coordinated, clear work of the liquidation commission. It is important that the work process is organized in accordance with the applicable laws of the country. The tasks directly solved by the commission should correspond to the approved plan. Such events are included in it:
- inventory;
- collection of data on company assets (size, composition);
- compilation of information about those participants who are entitled to property shares after calculating loans;
- analysis of the financial position of the organization at the moment;
- layoffs;
- identification of organizations established by the liquidated legal entity with their subsequent withdrawal from the composition or liquidation (depends on the presence of other founders);
- loan debt analysis;
- accounts receivable analysis;
- reconciliation of payments made to tax authorities, off-budget funds;
- the formulation of the procedure for the sale of property of the company;
- formulation of the procedure for settlements with creditors;
- formulation of the order of distribution of residual funds;
- preparation of documentation for the register.
The activities of the organization during the liquidation period include the preparation of instructions to the accounting department of the enterprise, other departments, services. All these actions must be strictly consistent with the approved plan.
Debit and property: what do we have?
One of the important tasks of the liquidation commission is to determine what the company has at the time of the decision on liquidation. And in the first place, attention is drawn to accounts receivable. As part of the identification of amounts, representatives of the commission write official letters in which they set out requirements for paying off debts and returning property. Of course, the addressees may refuse to pay, then you have to use the help of the court. Representatives of the commission will be entrusted with the task of representing YL in court. If the statute of limitations has expired, then the debit should be reflected in the written off losses.
Federal law on accounting and the regulation governing accounting in Russia are mandatory to take an inventory. Following the requirements of the laws, the liquidation commission conducts the most common inventory, checking liabilities, assets, identifying discrepancies and reflecting them on the accounts.
Paying with staff
Perhaps this is the activity of the organization during the liquidation period that is the most socially important and significant. You can fire an employee and terminate a contract concluded with him, but only by warning the employee in advance. By law, an official warning must be issued 2 months or earlier. In order for the termination of the contract to be legal, the staff must give formal written consent to this. Managers, in turn, are required to pay compensation for the liquidation of the organization - at least the amount of salary for two months.
An employee is also entitled to severance pay. This is the average monthly wage. At the time that it will take a person to find a new job, a liquidating company is obliged to pay him money. True, this does not last longer than two months, but then you will have to pay extra for all days unused by the employee from vacation. Money is given to the employee on the last business day. If a person did not appear at the workplace that day, then you need to pay off when the former employee comes for what is prescribed to him by law.
Taxes and liquidation
The liquidation commission must assume the obligation to pay tax authorities. This is described in the first paragraph of article 49 of the current Tax Code. Used for this is the money that the company receives by selling its property. When selling assets, obligations automatically arise that force you to pay various taxes, including VAT. At the same time, the commission responsible for the liquidation regularly writes declarations on the taxes that must be paid. This happens until the end of the liquidation.
Often the situation is such that there is not enough money even to pay compensation to employees during the liquidation of the organization. What can we say about settlement with tax authorities? The debt, which in this case is formed, falls on the shoulders of the founders of the company. The procedure for paying off debts is prescribed in the laws of the country. Civil law regulates the sequence in which you have to pay off debts to tax authorities and creditors.
Tax authorities are not sitting idle either
While the commission is trying to figure out what taxes should be paid, for which so far it can be pulled, how much should be paid and to whom, the tax authorities conduct their work. As soon as specialists from the state authority receive a notice of liquidation, an inspector responsible for the enterprise is appointed. His task is to verify the activities of the company and identify what taxes were in arrears. The audit is carried out on all taxes without exception for the entire period of the company, if it was less than three years, or for the last three years. The fact of previous checks does not matter.
The inspector, conducting field events, may additionally take part in the inventory. He has the right to inspect, inspect warehouses, shopping areas, production areas from which profit was made. Reconciliation statements are generated and used below to determine the amount of debt.
Liquidation balance sheet
The fact that such a balance is necessary, says the 63rd article of the Civil Code. By law, lenders have a limited time period for making claims. As soon as this period comes to an end, the commission forms an interim balance sheet. When it is approved, you can proceed to the calculations. So, balance becomes a prerequisite for meeting the requirements set.The purpose of the balance sheet is to identify the state of affairs in the company and determine the level of financing. The balance sheet should reflect the assets, liabilities of the organization, the price of property owned by the company, debit, credit, list of requirements.
The approval of the balance sheet is the task of the founders or of the state body that decided to liquidate the company. After three days from the date of approval of the documentation, the commission sends a notification to the registration authority.
We work with lenders
The commission is responsible for paying the amounts due to creditors. This is done from an approved balance sheet. Payments can be started already on the day when the balance is approved. An exception is the fifth stage, that is, those persons who are supposed to pay claims only a month after the approval of the balance sheet.
According to the law, upon liquidation, creditor claims are satisfied in the following sequence:
- first, to those to whom the company had obligations related to harm to health and life (this happens through the capitalization of payments);
- then they pay termination benefits, including those stipulated by contracts, copyright agreements;
- obligations having as security the property of the company;
- debts to the budget, extra-budgetary funds;
- fifth turn of creditors, the fulfillment of obligations to which is regulated by the laws of the country.
For each next stage, the time comes only when it was possible to fully settle with the previous stage. If the property was not enough, then it is divided proportionally to the debt and distributed among those creditors that need to be satisfied.
The commission may try to evade the performance of obligations to creditors. In this case, the creditor sends the application to the court. The court may decide that it is necessary to satisfy creditor claims, using for this purpose the property that the company still has. However, it is likely that the creditor sent the application late. That is, the creditor commission announced the deadline for filing claims, it passed, the creditor was not announced, but after a while he remembered what they owed him, and came through the court to demand his money. Here the law operates, popularly referred to simply as “whoever got up first, that’s also slippers.” That is, a latecomer is only entitled to what remains after covering loans to those who have announced their debts on time.
Founders and banks
What relies on the founders of the company to be liquidated? Usually - balances after lenders. When it was possible to settle all five lines, other property was divided between the persons who established the company. Who will get how much follows from the authorized capital: in proportion to the share contributed to it. They draw up a special act in which they fix to whom how much property has been acquired, and then sign it.
Once settlements are completed, it is time to close bank accounts. Usually enough statements to the bank. The representative of the liquidation commission, appointed responsible for this issue, comes to the bank branch, receives an application form, fills it out with the help of an employee of the financial structure. Additionally, they send a notification to the tax authorities, notifying that bank accounts are closed. In up to seven days, you must additionally formally send notifications to the FIU, FSS.