What is the forced liquidation of an LLC? What are its grounds, conditions and consequences? This topic is dedicated to this article.
Compulsory liquidation is a procedure in which the activity of an enterprise ends by a court decision, and not on a voluntary basis. The procedure is initiated upon detection of violations of applicable law. The process of forced liquidation of an LLC lasts quite a long time and is generally not beneficial to the owners of the enterprise. Even after this, creditors have the right to make claims on debt obligations. The procedure is beneficial only in that situation if the organization’s management wanted to close it due to the lack of prospects for development.
Grounds
In order to start the liquidation process, the company must be notified that there are violations of the law in its activities that will entail its liquidation. If the head does not respond and does not try to eliminate the violations, then the case goes to the arbitration court at the request of the person concerned. For example, if the tax is interested in the forced liquidation of an LLC.
You can also apply to the arbitration court in the following situations: the founders in fact do not conduct any activity and are registered only in the charter documents or put on the wanted list. The company is considered non-existent. The whole process is carried out at the expense of the organization in respect of which the case has been instituted. If the founders do not have the necessary funds, the abolition of the company is carried out at the expense of the state.
Compulsory liquidation conditions
Forced organization can be liquidated on the following conditions:
- Gross violations of the law were recorded.
- The activity was carried out without a license (if required by law).
- The company violated the law, increasing its own competitiveness.
- Lack of actual activity. The proof is the operations carried out on the current account. If it is not recorded activity during the previous twelve months, then this is considered the basis for the liquidation of the company.
Features of the liquidation
The process of forced liquidation of an LLC may be initiated by the following bodies: environmental prosecutors, federal and regional executive authorities. All structures that institute proceedings should be endowed with the appropriate authority. In addition, creditors may apply for liquidation of the enterprise if bankruptcy proceedings are ongoing.
What are the features of liquidation of an LLC with debts? Lenders are entitled to this only if the company's debt obligations amount to more than one hundred thousand rubles. In the event that after the judicial authority takes the relevant decision on the liquidation of the LLC, the founder decides to appeal it, then he has the right to file a complaint (supervisory, appeal, cassation).
Preliminary preparation
The forced liquidation procedure requires some preliminary preparation. It is necessary to conduct a thorough analysis of the solvency of the organization, to find out the volume of its assets. After this, a liquidation commission is appointed, as in other cases. But there are some nuances.
During the liquidation, so to speak, in the classic version, the commission is created taking into account the wishes of the founders.In the case of the organization of this process by force, a commission is convened in accordance with a court decision. A liquidator is selected who is responsible for the implementation of the appropriate actions. Carries out settlements with creditors, monitors payments of wages and severance pay to laid-off workers and various financial obligations to extrabudgetary funds. Also, the liquidator must reach an agreement with the creditors of the enterprise and achieve payments.
Mandatory liquidation actions
Liquidation of an LLC also requires the performance of mandatory actions in the manner prescribed by law:
- An interim liquidation balance sheet is prepared and delivered if it has not been surrendered for the previous reporting period.
- Assessment and distribution between the founders of the parts of the authorized capital.
- The amount of debt to be paid to creditors is calculated.
- Documentation is handed over to the archive, stamps and seals are destroyed.
Forced liquidation of LLC order has a certain. Without performing these procedures, it cannot be completed. There is an alternative way to terminate the company - through offshore. But this method raises many complaints from the tax authorities and therefore requires a more thorough legal study.
Step-by-step instructions for the elimination of LLC
The reasons can be very different, but the stages are always the same.
If the person concerned has filed a claim with the judicial authorities, he has the right to receive notification of the start of the process. Before filing an application with the court, it is necessary to collect evidence base on the facts of violation by the enterprise of the legislation. Documents are presented with the lawsuit. If the court considers the evidence collected reliable and sufficient, then it takes a positive decision on liquidation. At the next stage, in accordance with the court decision, a liquidation commission is convened, whose duties include the commission of certain actions. The commission takes the necessary steps to complete the accounting and audit of the organization.
In addition, it accepts claims from creditors, draws up an interim balance sheet and closes settlement accounts with banking institutions. Only after carrying out all these activities is the liquidation of the LLC carried out. In order for the procedure to be carried out legally, the commission must have the following documents: the decision of the judicial authorities, evidence supporting the violation of the law by the enterprise (for example, the results of a prosecutor’s audit), a statement of claim, an interim and final balance sheet. The founder must pay a fee, which is 20% of the fee that was paid during the registration of the enterprise.
The process of forced liquidation of an LLC by a tax authority must be accompanied by the exclusion of an LLC from the register. The tax authorities have the right to start the process of abolition if they have not received tax and accounting reports from the LLC within 12 months. And also when there were no transactions in the current account for the previous 12 months.
The tax authorities in the situation of the abolition of the organization operate according to the following algorithm:
- An internal document is drawn up confirming that the LLC does not send statements and does not use accounts for a long time.
- A resolution is issued on the date of liquidation.
- A message is published in the "Bulletin of State Registration" that the organization is planning to liquidate. All creditors of the enterprise must be notified that it is closing. They can file their complaints within three months. The message is required to indicate the time and procedure in accordance with which claims are submitted. They can be executed not only by creditors, but also by participants in the liquidation process.If at least one application is received within three months, the exclusion of the organization from the USRLE will not take place.
- After all business with creditors has been settled, the company will be withdrawn from the register.
According to the law, upon receipt of claims from creditors, liquidation is suspended. In practice, the process usually continues.
What to do after the forced liquidation of LLC?
Consequences of elimination
Liquidation of an enterprise means that it does not have the right to conduct any commercial or other activity. If the debts of the LLC were not paid in the liquidation process, then they are written off. Since after the abolition of the company there are no funds from which you can cover the debt. The property of the founders is not taken into account. The property of participants is subject to sale only if their intentional actions took place, which led to the collapse of the enterprise. In some cases, elimination can be avoided. For this, the founders must recognize the statement of claim on all counts and ensure the competent restoration of the solvency of the organization. This process can be prevented by obtaining a license, in accordance with which the activity was to be carried out. The founders can also organize the work of the enterprise in a manner consistent with the law.
The liquidation procedure is considered the most extreme measure applicable to particularly malicious defaulters. Before starting it, the organization is notified of this prospect repeatedly and management has time to rectify the situation. If the company takes measures to eliminate violations and improve the situation, then this will not be required.
What are the consequences of the forced liquidation of the LLC, it is now clear.
Pros of forced liquidation
Oddly enough, there are certain advantages to this process. These include the fact that the accountant should not in this case draw up and submit financial statements, this is done by the liquidation commission. Often, the reduction of fines occurs almost twice if they are accrued for lack of reporting.
Cons of forced liquidation
But, at the same time, the process can drag on for a long time. In addition, if the founders want to stop the process, they will have to use the services of a lawyer and sue the authorized bodies for a long time. In addition, creditors who have not received their money may subsequently make claims to the founders. In many situations, the owners of such companies will benefit if the organization has not made a profit for some time.
Liquidation period
The term for the forced liquidation of an LLC may not exceed six months after the effective date of the decision of the judiciary. If this time is not enough, then the registration authority sends a statement to the judicial authorities within ten days, where it is required to apply penalties to violators and provide a new term.
Finally
Thus, forced liquidation is a very specific process, which can be initiated by government agencies, commercial organizations or individuals.
We examined the consequences of the forced liquidation of the LLC.