How can a director avoid subsidiary liability?

In connection with changes in the Federal legislation of the Russian Federation, which came into force in June 2021 (No. 488-FZ), many executives have a need for protection from subsidiary liability . The current project has expanded the scope of “persons controlling the debtor”; accordingly, employees who previously could “retire” without coming under the close attention of inspectors are included in the legal field.

Unfortunately, legal departments of companies are not always ready to quickly answer the question “ How to avoid subsidiary liability ?” There are several reasons: frequent innovations in laws, demands from several creditors at once for personal property punishment. To ensure that a summons, fines and possible imprisonment do not come as a surprise, it makes sense to seek advice from experienced specialists who work in our company.

An initial consultation, during which the interested person outlines the essence of the problem and receives answers to priority questions, is possible by telephone and is free of charge. Communication with a lawyer specializing in the field of release from subsidiary liability is carried out in the office and costs 4,000 rubles. We guarantee the confidentiality of data and transparency of services. Call

Who is at risk?

Before finding out what it means to bear subsidiary liability , let's figure out who falls under it and what this process consists of. So, this article includes financial offenses - non-payment of debts due to:

Incomplete repayment or inability to repay debts to creditors or other authorized persons due to the inaction of the director/controlling person of the company (Article 61.11 No. 127-FZ comes into force).
Untimely filing or absence of an application/act of financial or property insolvency of the bankrupt (in accordance with Article 61.12 No. 127-FZ).
For intentional or unintentional (due to ignorance) violation of the insolvency law (Article 61.13 No. 127-FZ applies).

Naturally, debts must be collected, which raises the question: “Who exactly is appointed responsible for unpaid funds and unfulfilled obligations?” According to the new laws, the following may be brought to additional subsidiary liability :

business owners and founders;
executives and top managers;
head of accounting or financial department;
other employees who have the right to make decisions significant for the organization’s activities;
persons acting on behalf of a bankrupt company (intermediaries);
employees of the liquidation commission (relevant in case of officially recorded bankruptcy and the “purity” of the employees who recorded it);
majority shareholders;
persons related to owners or managers;
counterparties, with proven close financial ties between the debtor company and them.

Practice shows that officials in key positions are the first to come under close scrutiny. That is why the topic: “ How to avoid subsidiary liability in bankruptcy ?” most often concerns the general director, financial director, and chief accountant.

It is important to know! Since the “group of responsible persons” is quite large, if a debtor organization has a problem with outstanding debts and the impossibility of paying them to creditors at the expense of the company’s funds/property or personal savings, without competent legal advice and knowledge about the consequences of bringing to subsidiary liability, the persons subject to It is problematic to feel safe in this jurisdiction.

What to do to prevent being held vicariously liable in bankruptcy?

Quite often, entrepreneurs have the idea of writing off subsidiary liability in the event of bankruptcy of individuals. Let us note right away that this is impossible. Bankruptcy law provides for a number of debts that cannot be written off as a result of insolvency, and subsidiary liability also applies here.

The only suitable, but not very common, method is debt redemption, but this method is already relevant for those who were unable to avoid responsibility. As a rule, creditors are ready to sell such debts for a small amount, realizing that they will not be able to collect the debt in full. Let us remind you that according to statistics, one CDL accounts for an average of 113 million rubles, and this is a considerable amount of funds.

Vicarious liability: conditions and consequences

Involvement in compulsory penalties is not carried out automatically, but subject to certain conditions. For management representatives, as well as business owners/founders, these factors are:

deliberate violation of the law in the performance of official duties, as well as the rights of third parties;
legally proven guilt (causing damage to the company, misuse of budget funds, etc.);
the presence of losses or harmful actions caused by negligence or ignorance;
an obvious connection between the bankruptcy of the enterprise and the actions of the responsible person.

Depending on the degree of violations identified, the size of debts to creditors and the intentionality/unintentionality of actions, the consequences of subsidiary liability may include the following problems :

a fine ranging from 5 to 30 thousand rubles;
disqualification – inability to engage in leadership activities for 3 years.

Financial liability is the most common punishment for managers. If deliberate actions are identified that led to bankruptcy and ruin in order to cover up violations, we can talk about administrative and criminal liability.

How to collect subsidiary liability

Before appointing a “responsible person” and “hanging” responsibility on him, it is necessary to establish who specifically is responsible for bankruptcy and violation of the procedure for its recognition. According to ch. 3 FZ-127 dated October 26, 2010 No. 127-FZ, to determine such a financially responsible person, a commission (an authorized body or a controlling person) is appointed, whose powers are:

give instructions;
influence the actions of the debtor, including imposing a ban on transactions.

Regardless of the identified offenses and the position of the person responsible, a judicial review is mandatory. It is in court that the exact degree of guilt of the defendant is considered and the specific amount of financial compensation is determined.

Since bringing to trial is a lengthy and multi-step process, it is advisable to contact a competent lawyer for advice on subsidiary liability and entrust him with the conduct of the case: this way the defendant will save time, money and save the nervous system.

How to avoid subsidiary liability in bankruptcy

There are several conditions under which prosecution is impossible. For example, the manager or owner is not guilty if the liquidation of the legal entity was not carried out due to bankruptcy. Also, judicial proceedings are not applied if there are no culpable acts committed.

Among the preventive measures taken to protect the director from subsidiary liability (risk reduction):

exclude the sale of assets at a reduced cost;
avoid concluding unprofitable or unauthorized transactions with “dummy” persons;
if any financial/accounting or tax documents are lost, restore them as quickly as possible;
when choosing and collaborating with contractors, exercise extreme caution;
Keep track of all debts, and if there are any overdue ones, take active measures to repay them.

Important! Compliance with the above points increases the chances of challenging subsidiary liability in court, since it proves the competence and law-abidingness of the manager.

What is subsidiary liability in simple words

The person who entered into the contract is responsible for violation of the obligation. For example, borrowers who have signed an agreement with a bank or microfinance organization are responsible for loans and borrowings and have fallen into arrears. From other persons, for example, from guarantors, debt can only be collected through joint and several liability.

Who can be held vicariously liable in bankruptcy?

In bankruptcy law there is such a thing as a “person controlling the debtor.” It is it that can be held liable for the subsidy if such a decision is made by the court. The controlling person may be citizens or organizations that in the last 3 years have had the opportunity to determine the actions of the debtor and give him mandatory instructions.

The court may recognize the following as a controlling person:

citizens and organizations that are part of the founders
- they consider and approve the main issues related to the activities of legal entities. persons who make decisions on transactions and approve reports;
members of the company's management body
- under certain conditions, they can also influence decision-making and actions;
persons to whom the powers to make decisions and carry out actions in the interests of the debtor have been transferred
- for example, the powers to dispose of property and obtain loans can be transferred by power of attorney, by decision of the founders;
officials who had the right to make decisions on property issues and financial activities
- this list may include the general director, chief accountant, and other officials.

Any other person who could influence decision-making may be held accountable, forced

leader to take certain actions. Such issues are considered individually, based on the evidence presented. For example, the fact of coercion can be confirmed by the materials of a criminal case initiated based on the proven fact of premeditation of bankruptcy.

Is there a threat of a subsidiary in case of bankruptcy of individuals?

Chapter III.1 of Law No. 127-FZ on subsidiary liability does not apply to the bankruptcy of individuals. This has been repeatedly confirmed by the practice of arbitration courts. However, in the normal collection of loan debts, the bank may hold co-borrowers and guarantors specified in the loan agreement jointly and severally liable.

As part of the bankruptcy of an individual. persons can levy recovery on the common property of the spouses, even if it is not registered in the name of the debtor himself. This does not apply to the subsidiary, since both spouses are initially required to answer for obligations that arose during the marriage.

Actions when bringing to subsidiary liability

Alas, in Russian legislation there is such a fact as a “presumption of guilt”, respectively, the director (existing or former), founders, financial director, accountant, etc. are considered guilty until proven otherwise. For the evidentiary basis, it is necessary to certify to the court that:

the absence of one’s own fault in the losses suffered by the debtor company;
reasonableness, competence and compliance with applicable laws in making decisions;
there is no connection between cause and effect (between losses and management’s actions), as an option - to prove that the actions were aimed at minimizing or eliminating even greater losses.

Brought to subsidiary liability: what to do?

If the case has already been sent to the judicial authorities, you should quickly collect documentation for refutation. The following can be used as rebuttal documents:

an expert opinion confirming the innocence or unproven guilt of the defendant;
audit assessment provided by a company with a good reputation;
evidence that at the time of the transaction the conditions complied with the law, for example, prices were lower.

Important! If the fault for the bankruptcy of the enterprise and, as a consequence, the impossibility of paying creditors, lies with the counterparty who turned out to be unreliable, it is necessary to provide information about how the defendant selected him and checked his reliability and solvency. For this you may need; extract from the state register of individuals (registration of a counterparty company), recommendations of partners (written), assessment of reputation at the time of the transaction, etc.

Another way to be released from subsidiary liability is to prove that de facto important decisions were made not by management (director, owner, chief accountant), but by another person to whom powers were transferred. True, the court will not take your word for it, and collecting evidence is quite long and labor-intensive.

In what cases can they be held vicariously liable?

The defendant will decide how to avoid subsidiary liability if he:

signed agreements that led to bankruptcy;
withdrew assets from the company;
forced a third party to enter into dubious contracts;
I lost my accounting papers.

Exemption from subsidiary liability in bankruptcy is impossible if the founder, director, accountant or other interested party intentionally carried out the following actions:

information in the documentation is distorted (membership of directors, real profit);
harm was caused to creditors, partners, competitors;
fraud and embezzlement.

But not a single professional can tell you how a director can avoid subsidiary liability if he has not taken any action to protect his organization from insolvency.

Vicarious liability: how consulting a lawyer can help

Protection of rights in case of subsidiary liability is an inalienable privilege of every person. In order not to become a “freedman” and to protect your rights, it is advisable not to try to understand the intricacies of the laws on your own, but to trust an experienced lawyer.

According to statistics, today's judicial practice satisfies about 20-25 percent of claims against former managers. For comparison: in 2016-early 2021 such decisions were no more than 5%. Therefore, the problem of what subsidiary liability threatens and how to avoid it is more than relevant.

How can contacting our law firm help?

Our lawyers specialize in protection from vicarious liability , using effective methods, which in most cases leads to the release of the plaintiff from financial penalties or a significant reduction in the amount of debt compensation.

A lawyer who knows the intricacies of the legal system:

will give a realistic assessment of the current situation;
will identify and determine the factors that caused or other managerial representative to be held vicariously liable
will assess the loss caused to the company;
will help to find evidence of the defendant’s innocence and formalize it in a regulatory manner for submission to the court;
will represent you in court, guaranteeing the right to legal support.

Even if guilt is established, it is possible to reduce liability. The main thing is to seek legal help immediately, without delaying it, and then even a “hopeless” case can be resolved in favor of the client.

How to do it: avoid personal liability when companies go bankrupt

Suspicious transactions

A presumption of guilt is established if the court declares any transaction of the debtor company during bankruptcy invalid. For example, if the creditors’ claims were not satisfied due to the fact that the debtor’s manager decided to first pay off the claims of “important” creditors, after which there was simply no property left to pay off the remaining claims. There is a priority position of some creditors over others. In this case, there is a risk that the manager will be held personally liable for outstanding debts.

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It was this approach that was followed by the Moscow Arbitration Court when, in September 2014, it imposed subsidiary liability for 1.4 billion rubles. director and founder of Nigmas LLC. The judicial act was based on the conclusions that the head of the company, Alexander Goryainov, had made a number of obviously unprofitable transactions with the founder of Nigmas LLC, which together led to the bankruptcy of the company.

Advice: if you understand that a company is on the verge of bankruptcy, you should not give priority to some creditors over others. If the company is ready to repay part of the debts, you can transfer funds to creditors in proportion to their requirements.

Lack of documents

A presumption of guilt is also established if the debtor company does not have accounting documentation or if it is significantly distorted by the time the bankruptcy procedure is introduced. Moreover, the absence of such documentation should complicate the formation and sale of the bankruptcy estate, i.e. debtor's property. For example, in practice, many managers. The legislator and judges do not think so. Now, in the absence of documentation that the company is obliged to keep in accordance with the law, the managers will be held liable for the company’s debts. Moreover, the management’s explanations that the documents were stolen or destroyed as a result of floods, fires, earthquakes and other disasters are increasingly being rejected by the courts. This is exactly what the Arbitration Court of the Altai Territory did in March 2014, when it recovered 183.3 million rubles from the owner and manager of Agroinvest LLC, Svetlana Denisenko. within the framework of subsidiary liability, since the bankruptcy trustee was provided with distorted accounting documentation. And the owner of AxiomA LLC, Alexander Bagrov, tried to convince the Arbitration Court of St. Petersburg that he had lost all the company’s accounting documents, but this did not help him.

Advice: from the moment the corresponding bankruptcy procedure is introduced, the accounting documentation of the debtor company must be transferred to the insolvency administrator.

Unscrupulous businessman

In some cases, the courts may hold the owner of the company to subsidiary liability if they prove the facts of his unfair business activities. Thus, in July 2014, the Arbitration Court of the Jewish Autonomous Region imposed subsidiary liability for 4.5 million rubles. founder and head of the TVKR company Vasily Labeko for refusing to participate in the next competition for the right to lease utility infrastructure facilities, which led to the actual cessation of TVKR’s economic activities. The court found that the owner of the company won this competition on behalf of his other company with a similar name, and the reason for the bankruptcy of the first company was the presence of its accounts payable.

The cause of troubles for company owners is often the Federal Tax Service. Tax officials present demands to the company to collect arrears of taxes and fees, which in turn can cause the company to go bankrupt or significantly increase the claims of creditors if the Federal Tax Service enters into bankruptcy proceedings that have already begun. This happened with the director of PKF Karat LLC, Tatyana Sokolova, whom the Arbitration Court of the Altai Territory held in subsidiary liability for 37.2 million rubles in March 2014, since the Federal Tax Service proved that the company she headed received unjustified benefits from transactions with counterparties, and filed tax claims.

Advice: the manager or owner of a company on the verge of bankruptcy, when making a decision, needs to look at the situation “from the outside” to ensure that the interests of the company are respected.

Avoiding responsibility becomes more difficult

Most often, applications to bring the management and owners of a bankrupt company to subsidiary liability are received at the stage of bankruptcy proceedings. According to the Judicial Department of the Supreme Court, in the first half of 2015, 1,238 such petitions were received - in almost every fourth bankruptcy proceeding (22%). In 2014, such requests were made in only 18% of cases. But it would be wrong to perceive what is described above as a general imposition of responsibility for the debts of companies on their managers and other controlling persons. The circumstances of each case are unique and must be carefully analyzed by the court in each individual case. But when making management decisions, managers and business owners need to know that in the event of a company bankruptcy and failure to repay debts to creditors, they may be forced to prove their innocence of malicious intent.