Forced liquidation of a legal entity is a procedure that is performed upon completion of its activities by force, based on a court decision. The body, on the initiative of which it can be held, is the Federal Tax Service, the Federal Antimonopoly Service, as well as various municipal entities. A similar process occurs when the organization violates the laws of the Russian Federation. The procedure is quite complicated and requires a lot of time.
What are creditors entitled to?
Despite the fact that the forced liquidation has already taken place, lenders can still make claims for debt repayment. This type of liquidation is relevant for the organization if the LLC really did not have the opportunity to continue promising activities. In this regard, it is necessary to understand what are the grounds, stages, and the procedure for passing the above procedure. What reasons arise for its implementation? By answering these questions, we can understand the essence of the existence of the forced liquidation of a legal entity.
What is forced liquidation?
The process of disbanding the business of a legal entity is recognized as forced liquidation. It is based on a trial in an arbitration court. This function is regulated by the Federal Law “On Insolvency (Bankruptcy)”.
Termination of activity of a legal entity is a type of punishment as a result of non-compliance with the provisions of the current legislation of the Russian Federation. Issues due to the use of civil law in the field of compulsory liquidation of a legal entity are significant today, since forced liquidation does not entail the cessation of economic activity in general.
How is the bankruptcy proceeding?
It is necessary to know all aspects when carrying out the procedure in question, since this leads to the timely finding of all the shortcomings and their correction in the field of the exercise of their own rights by persons carrying out a certain type of activity. Upon the forced liquidation of a legal entity, bankruptcy proceedings as provided for by the above law shall take place, as well as on the basis of a decision of the arbitration court. Interested parties submit an application to the body, as indicated earlier, by the Federal Tax Service, the Federal Antimonopoly Service, the administration, etc. During the course of bankruptcy proceedings, the activities of the legal entity are terminated. This is a special form of liquidation used in the event that the debtor is declared insolvent, whose goals are to proportionately satisfy the claims of creditors, and also to protect the interests of the parties from unlawful acts in relation to each other. The reasons for the forced liquidation of a legal entity will be considered below.
What organs can contribute to eradication?
The bodies of federal executive power, bodies of the prosecutor's office, subjects of executive power, and municipal formations can contribute to liquidation. These structures have certain authority to perform these functions. In the event that a legal entity does not comply with the law in carrying out its own activities, then it is possible to bring him to liquidation by force.
Procedure for forced liquidation of a legal entity
At the same time, registration authorities, due to incomplete payment of the authorized capital, lack of coordination of constituent documents, may show initiative in this matter. In addition, the prosecution authorities may commit such a circumstance. For example, in view of complaints from citizens interacting with LLC regarding a violation of applicable law, the IFTS of Russia is able to initiate such a process as a result of a gross violation by a certain person of legislation in the field of mandatory taxation.
FAS is able to raise the issue of forced liquidation of a legal entity in the event that the implementation of economic activity is aimed at competitive elimination, monopoly in the market is ensured. The Central Bank of the Russian Federation has the right to consider filing a claim on the basis of the lack of a license for the legal entity. Any interested person in respect of which the legal entity is in arrears has the right to apply to the arbitration court. But most often this happens when the IFTS of Russia appeals to the subject in whose territory the organization is registered.
The creditors of the enterprise also have the right to initiate liquidation, but in accordance with the legislation on insolvency in case of arising debts more than 100 thousand rubles. The relevant court decision can be appealed to a higher court.
We will understand how the forced liquidation of a legal entity by a tax authority is carried out.
Procedure
The main stages and procedures for carrying out such a procedure are:
- First, it is important to study the solvency of the LLC, to analyze its assets.
- Secondly, the arbitration court at the suit of the applicants needs to create a liquidation commission, which will consider issues related to the procedure and execution of actions to liquidate a person under duress. The functions of the liquidation commission include: settlements with creditors of a legal entity, closing of statements on the payment of arrears of wages to employees who will subsequently be dismissed, as well as payment of arrears to other funds.
Interim balance
Forced liquidation of a legal entity also includes the creation of an interim balance sheet. In this case, it is worth considering some nuances. If it was not previously provided in the form of a final liquidation balance sheet, shares of the authorized capital are distributed, documents are handed over to the archive, stamps and seals are destroyed.
Offshore application
Widespread type of liquidation of LLC through the use of offshore. There are a lot of problems. Therefore, the participation of professional lawyers in their field is important. Questions that may arise will come mainly from the IFTS. It is important to understand the difference between voluntary and forced liquidation of a legal entity.
The work of the liquidation commission
If the dispute is resolved by the arbitration court, all obligations regarding the procedure are fulfilled by the founder. However, in case of abstinence from the execution of a court decision by the founder, a liquidation commission shall be appointed.
As for their personal property, it is safe, despite the fact that they may not have enough finances for settlements with creditors and payment of all existing debts. While the law and the charter of a legal entity may establish subsidiary liability for founders, they are forced to make settlements in cash that were received as a result of the sale of personal property. A similar thing happens if there is a lack of finance for the LLC for settlements with creditors. Cases of forced liquidation of a legal entity are now common.
Order of the Arbitration Court
When accepting a statement of claim, the presence of violations should be considered in court, and after that - an assessment of all identified non-conformities.Then the arbitral tribunal shall issue an appropriate decision regarding the liquidation of the company. Often, many organizations fail to appeal such a decision. The above procedure includes a set of actions, which is regulated by the provisions of the Civil Code of the Russian Federation (Article 63). It also provides for the procedure for its implementation.
Forced liquidation of a legal entity is carried out by a court decision.
Example
It should be noted that the court does not always support the position of the applicant’s side on the forced liquidation of legal entities. faces. We give an example from judicial practice.
So, a lawsuit was filed with the Supreme Court of the Russian Federation with a statement on the forced liquidation of LLC on the issue of repeated non-compliance with applicable laws in its activities. The legal representative of the Ministry of Justice, citizen J. supported the stated requirements. At the same time, she spoke about the elimination by society of errors.
Accordingly, amendments were made to the Charter of the Company, which were registered in accordance with the order dated 01/26/2015. The defendant's party, referring to the elimination of errors in full, put forward a refusal to satisfy the application.
In the course of the audit of the Company’s activity, which was conducted by the Ministry of Justice of the Russian Federation, nevertheless, shortcomings in the LLC’s work, and violations in terms of compiling the Charter of the Company were revealed. At the same time, mistakes were made regarding the requirements that are provided for charitable foundations. But all the flaws were eliminated by the deadline specified by law. In this regard, the court rejected the statement of the Ministry of Justice of the Russian Federation on the liquidation of a public organization.
That is, in this case, the liquidation of a legal entity is compulsory.
Thus, it can be seen from the above example that the timely elimination of errors in the activity affected a positive court decision in favor of the defendant.
Aggregate functions by authorized bodies
In fact, the liquidation process by force implies the aggregate functions of the authorized bodies. For example, as noted, the arbitral tribunal establishes a liquidation commission, which undertakes to carry out all the considered actions as an order of the final procedure. But, if you correctly and timely address this situation, it is possible to eliminate all the shortcomings that are the basis for applying to the judicial authority, before the lawsuit arrives in court.
Such treatment involves interaction with authorities that initiate legal proceedings in relation to the problem. In addition, legal entities and individual entrepreneurs should not take actions regarding evasion of the obligations assigned to them by the current legislation of the Russian Federation in the field of compliance with its provisions. Since they have a significant impact on the future activities of these individuals and the corresponding perspective in their functioning. We examined the grounds and procedure for the forced liquidation of legal entities.