The existence of any enterprise ceases when it is recorded that the legal entity is excluded from the Unified State Register of Legal Entities, that is, from the Unified State Register of Legal Entities. Now, at the legislative level, such a procedure is allowed not only on the initiative of the enterprise, but also on the basis of a verdict of fiscal authorities.
When is a legal entity excluded from the state register?
The Federal Law “On State Registration of Legal Entities” and the Civil Code directly list the grounds in connection with which the company is excluded from the register:
- voluntary liquidation of the organization;
- reorganization of a legal entity carried out by means of division, accession, spin-off or merger;
- an exception on the basis of a decision of the authorized body if it is discovered that the legal entity is inactive;
- forced liquidation of an enterprise on the basis of a verdict issued by the Arbitration Court.
If an organization liquidates voluntarily, then this involves a large number of formalities, the need to settle with all creditors, including also budget payments, and the formation of an accounting liquidation balance sheet.
Mostly, the tax inspectorate initiates on-site verification of documents, which may result in additional penalties and taxes for the organization.
Conditions
A person who is no longer active is excluded from the register. It is recognized as such if during the last year:
- reporting on taxes and fees was not provided;
- at least one bank account was not transacted.
These 2 symptoms are required to be present at the same time. If the organization just does not submit reports, but the account moves or, conversely, the account is frozen, but the company submits zero statements, there are no grounds for exclusion.
From September 1, 2017, 2 more cases were added when the company can be excluded:
- When liquidation is impossible due to lack of finance for the necessary expenses, and it is impossible to assign them to the founders. The Civil Code of the Russian Federation has already fixed this norm. The registration act lacked it. A similar mechanism will still be worked out at the tax service level.
- If information that is unreliable is discovered in the Unified State Register of Legal Entities, within more than six months from the moment of making an entry about it. This is one way to deal with purchase addresses and non-living directors.
How is a legal entity excluded from the register during the reorganization?
In order to voluntarily "get rid" of a company that does not generate income and does not engage in economic activity, there are alternative methods, which include all types of reorganization measures.
The procedure for exclusion from the USRLE through reorganization also has a positive point: a relatively small number of documents that are required for submission to registration authorities. In addition, the period during which the liquidation of the organization will be recognized as completed, ranges from two to four months.
As soon as a decision is made by the founders of the enterprise on future restructuring, it is necessary to obtain official consent from the founders of the successor company of the liquidated company. The reorganization verdict and the corresponding notice of form C-09-4 must be submitted to the tax office.At the same time, a record of the beginning of the procedure is entered in the Unified State Register of Legal Entities.
Within five days, the obligation of a legal entity is to notify all creditors in writing of the alleged liquidation. Also, according to the law, founders must publish information about the reorganization 2 times in the "Bulletin of State Registration" - a special journal. A month should elapse between announcements.
Documents for registration of a new legal entity
As soon as all the formalities are met, the registration authority of the Federal Tax Service must submit an application for registration of a new legal entity and relevant documents:
- foundation agreement and Articles of Association, i.e. constituent;
- agreement between the parties on the spin-off, merger, takeover and separation;
- receipt of payment of a fee for registering a new LLC;
- deed of transfer or separation balance sheet with information on succession.
After 5 days pass, the previous company is liquidated and information about it is deleted from the register.
How is a legal entity forcibly removed from the register?
The Unified State Register of Legal Entities was created so that reliable information about all legal entities that are engaged in economic and financial activities in our country are recorded in it. But in fact, everything turns out so that due to the excessive difficulty of the official liquidation of enterprises, many owners simply abandon the company that has exhausted its resource.
That is why the register includes organizations that have long ceased their activities. It is allowed to apply a coercive measure to such enterprises, that is, to carry out the forthcoming exclusion of a legal entity from the USRLE on the basis of a decision of the tax authority. How to recognize such an organization? The Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” lists all the characteristics of an inactive legal entity:
- the company does not provide reporting (accounting and tax) to the authority of the Federal Tax Service within twelve months at the place of registration;
- lack of financial movement on the settlement accounts of the enterprise during the last calendar year.
As soon as each quarter expires, the tax authorities form a list of companies that have not passed regulated reporting for the past 12 months. Also, the desk audit department sends requests to banks upon the fact that during this calendar period expenditure or credit transactions were performed.
In the absence of relevant operations over the past year, the fiscal authorities make a statement with the grounds listed therein for further exclusion of the legal entity from the USRLE on the initiative of the tax inspectorate. No later than one day, the document is transferred to the division of the Federal Tax Service. It is it that is responsible for the state registration of legal entities.
The inspection within five working days decides on the upcoming removal of the company from the state registry.
At the same time, the “Bulletin of State Registration” announces information about the upcoming exclusion of the enterprise, as well as the order in which applications from creditors and other interested parties are received.
Objection Period
Under the law, 3 months are allotted for filing applications from various persons for the alleged removal of the company from the register. Can cancel the procedure? If during this period, former employees, creditors or the company's founders directly express their disagreement, then the decision to expel from the USRLE will not be made.
If there are no statements or objections to the exclusion of a legal entity that has ceased its activities, then the organization shall be recognized as officially liquidated.
Within four months after the first publication of the impending exclusion, the necessary entry is made in the state registry, and information on the exclusion of the enterprise is entered in the “State Registration Bulletin”. It is necessary.
I must say that on legal grounds it is possible to make an exception from the USRLE of companies that simultaneously fall under both of the above signs, which allow them to be recognized as invalid. It does not matter if the company has debts to the budget for taxes and duties, as well as for fines accrued for missing reporting.
FTS look
From the position of the tax service, the liquidation of an enterprise from the USRLE is carried out exclusively in cases where the company has no debts on obligatory payments. That is why fiscal authorities that are able to resolve issues regarding the cleansing of the registry from enterprises that do not operate, instead of the procedure for exclusion from the Unified State Register of Legal Entities, file a lawsuit to declare a legal entity bankrupt.
The arbitration courts, in turn, considering applications of the Federal Tax Service, find all the properties of an inactive organization and do not accept bankruptcy claims for consideration. The presence of discrepancies in tax and civil law requires regulation. This is necessary so that the USRLE has exclusively up-to-date information about existing enterprises.
Legal grounds for company exclusion
The decision to expel from the Unified State Register of Legal Entities can be appealed by both the founders and other interested parties. Doing this is permitted for twelve months after the creditor or other counterparty receives information about the violation of their own rights. This period is calculated from the time when the announcement of the liquidation of legal entities is published. persons in a special magazine.
Creditors interests taken into account
The legislative norm, which allows the tax department to stop the legal capacity of a legal entity through its exclusion, should not infringe on the interests of creditors. A decision was made in the Constitutional Court, on the basis of which it is allowed to review the rules for the administrative exclusion of an organization from the register.
What consequences may be associated with the exclusion of a legal entity?
The consequences of exclusion from the USRLE of an administrative nature are similar to those that correspond to the liquidation procedure:
- termination of the company without succession, that is, without transfer of duties and rights to other persons;
- the debt to creditors held by a legal entity, including also to the budget, is repaid by the property that the organization has, as well as in the manner of the claims.
Point of no return
In the absence of assets of a legal entity that can be realized in order to satisfy the requirements of creditors, its debts to the budget and counterparties are considered hopeless from the moment of exclusion from the USRLE.
However, removing a company from the registry cannot be seen as an easy way to eliminate a dying organization. Such an approach is allowed only for one-day enterprises that were created for a short time. If there are no real individuals among the leaders and founders to whom tax claims can be filed, then extrajudicial liquidation from the register will be painless.
If the “abandoned” organization has actual founders, the elimination procedure does not give them the right to be exempted from subsidiary liability for arrears to various creditors or the budget.
How can tax avoidance exclusion be avoided?
If the management and founders are not going to liquidate the organization, and the work is suspended due to temporary circumstances, then exclusion from the USRLE may occur by decision of the tax authority. To avoid this, it is necessary to take measures such as:
- Avoid prolonged omissions in the provision of necessary reporting. If you submit zero reports on time, this ensures that the company does not attract the attention of the inspection. An organization can avoid administrative deletion from the registry. The term of exclusion from the Unified State Register of Legal Entities is from 4.5 to 5.5 months from the date of incorporation of the legal entity. persons on the list of taxpayers who do not provide tax / accounting statements.
- For twelve months, you must carry out at least one transaction in your bank account. It is enough to deposit a symbolic amount in the form of a loan.
Be carefull
In addition, it is recommended that you periodically monitor information about legal entities of interest. persons in the register. When the tax inspectorate decides on the upcoming exclusion, such information will be available to users who are interested in it. Also, the taxpayer may declare his objections regarding the administrative removal from the system of not only his company, but also of the company, which is a debtor to him.