Imagine a situation where a tax audit is conducted of a company involved in a crime related to cashing out. Fiscal authorities charge additional taxes, but the company cannot pay off its debts to the budget. Tax authorities initiate bankruptcy proceedings and become the main creditors of the company. Persons holding the positions of manager, founder, accountant, financial director may bear subsidiary liability. The listed employees fall into the category of KDL.
When does subsidiary liability of the founder and directors of the company arise?
Below we will list four important factors that need to be taken into account to answer this question. In order to hold the founder subsidiarily liable for debts, it is necessary to find out:
Have there been any cases of loan database insufficiently “clean” withdrawal of company funds over the past three years?
Have any facts of lack of accounting documentation and disorder in reporting been revealed? The founder, director and chief accountant bear subsidiary liability with their own property.
Tax claims account for more than half of the total creditor claims. Alternatively, the CEO has been subject to administrative, criminal or tax penalties in the past. Subsidiary liability of the director and other representatives of the company's management occurs automatically.
The Unified State Register of Legal Entities or the Federal Information Register on the Activities of Legal Entities contains questionable or inaccurate information about the company.
An assumption of subsidiary liability that will have to be refuted.
The KDL will be liable in case of asset stripping. This is the very first factor. In other words, the prevailing presumption of subsidiary liability is asset stripping. There is no need to invalidate the transaction. Asset stripping itself makes the KDL guilty. If the court makes such a decision, all transactions of the company identified by the tax authorities are automatically invalidated.
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The procedure for bringing the founder to subsidiary liability for the debts of an LLC
In order to hold the founder and director of an LLC liable for subsidiary liability, creditors must take certain actions:
Obtain a court decision that the debtor enterprise has been declared bankrupt (an extract from the Unified Register of Legal Entities on the exclusion of such an organization).
Determine the amount of payments due to them.
Verify that debt collection through the sale of the debtor's property is impossible.
Obtain confirmation of the impossibility of returning your funds at the expense of the property of a bankrupt organization (most often, a company that has been brought to such a state no longer has anything valuable).
File an application with the court to initiate a corresponding case against the entities that controlled the enterprise and its property. In other words, you need to file a claim for subsidiary liability for the debts of an LLC or other form of registration of organizations, where the defendants are the founders and director of the company.