What role does the tax office play in bankruptcy proceedings?

. After reading the information, you will understand what you need to do if the fiscal service requires you to investigate the insolvency of a commercial organization.

The following method can be cited that can help convince tax authorities not to file for bankruptcy of a company. A problematic payer can show documents on the basis of which it will be clear that he can pay off the debt to the tax authorities by collecting his own receivables. It is important that the “receivable” is greater than the fiscal debt. It is also necessary to have a plan for paying off the debt. It should also be noted that a court decision on the requirement to receive an overdue obligation is most likely not the correct justification for the tax authority. An example is a case where a company won a claim in arbitration, in which it decided in favor of the debtor, awarding collection of receivables.

However, it is necessary to understand that fiscal services can appeal this verdict. The basis here is that the fulfillment of the obligation to pay off the “debt” is only a probability that may not occur. In addition, the question arises: are the amounts of penalties included in the debt to the Federal Tax Service itself? To this, lawyers answer that only the principal debt is taken into account.

They also explain that a claim regarding the insolvency of a legal entity by the tax authority can be satisfied only if a court decision was previously made to repay financial obligations at the expense of the payer’s property. The law gives 30 days for this procedure, and if it is not implemented within this period, only after that the Federal Tax Service can initiate a case of insolvency of the tax payer.

Bankruptcy of legal entities by the tax inspectorate

Let us repeat once again - tax authorities can begin the insolvency procedure only a month after the court verdict. But in the case when the counterparty’s monetary obligations are not fulfilled. If we talk about legislation, then this is evidenced by government decree No. 257 of May 29, 2004, which includes the procedure for conducting bankruptcy proceedings in the interests of the Russian Federation as a creditor.

This regulatory legal act specifies a period of up to three months, according to which the Federal Tax Service needs to make a decision on filing an application with the arbitration court to initiate insolvency in relation to a certain legal entity. By the way, it should be mentioned that the main criterion for a problem debtor is the amount of three hundred thousand rubles for monetary obligations to creditors. You also need to highlight Federal Law No. 127 on bankruptcy, in which you can find a lot of useful information about this procedure regarding commercial organizations.

What documents are needed for bankruptcy from the tax authorities?

On the basis of what documents do tax authorities have the right to apply to an arbitration court for bankruptcy?

Bankruptcy is initiated by tax authorities in relation to companies and individual entrepreneurs based on the decision of the Federal Tax Service to collect tax debts at the expense of their property.

But bankruptcy of individuals by the tax inspectorate is possible only on the basis of a court decision, since it is possible to forcibly collect overdue mandatory payments at the expense of citizens’ property only in court.

Bankruptcy of legal entities with debts to the tax authorities

The Federal Tax Service has all the powers of the executive branch of the Russian Federation, so the tax authority can collect all the information about the obligatory payments of the debtor, for example, to the Social Insurance Fund and the Pension Fund. The amount owed above also applies to payments to these authorities. When the tax service files a claim for the insolvency of a company due to non-payment of taxes, it also needs to inform the FSS and the Pension Fund of the Russian Federation about this fact. Upon her request, these government agencies must provide data on the amount of obligations of a certain company to them. Please take this information into account when you contact the Federal Tax Service.

Next, tax authorities combine the information received from organizations and send it to arbitration, which already includes the debt beneficiaries in the list of claims. Experienced lawyers say that if a legal entity has not paid mandatory payments in the amount of more than three hundred thousand rubles within 90 days, then the tax service, in accordance with the law, is obliged to file a claim for the insolvency of a commercial organization.

By the way, for information - for an individual entrepreneur, the amount of debt at which the Federal Tax Service initiates bankruptcy of an entrepreneur is at least half a million rubles. Also, the reason for carrying out this procedure may be non-payment of tax payments as an agent. This is reflected in the comments of the Supreme Court which clarify this aspect. But, as experts say, this is a right, not a responsibility of tax officials.

Bankruptcy procedure initiated by an authorized body

Procedural features of bankruptcy initiated by tax authorities

In accordance with Federal Law dated 26.10. 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), insolvency (bankruptcy) is the inability of a debtor recognized by an arbitration court to fully satisfy the claims of creditors for monetary obligations or to fulfill the obligation to pay obligatory payments.

A legal entity is considered unable to satisfy the claims of creditors or make payments if the corresponding obligations are not fulfilled by it within three months from the date on which they should have been fulfilled.

The Federal Tax Service of Russia is authorized to represent the interests of the state in bankruptcy cases (clause 1 of the Regulations on the Federal Tax Service, approved by Decree of the Government of the Russian Federation of May 29, 2004 No. 257 “On ensuring the interests of the Russian Federation as a creditor in a bankruptcy case and in the procedures applied in a bankruptcy case bankruptcy" (hereinafter referred to as the Regulations on the Federal Tax Service)).

To initiate bankruptcy by the tax authority, the amount of the enterprise's tax must be at least three hundred thousand rubles.

If the debtor fails to comply with the requirements, the Federal Tax Service of Russia makes a decision to send an application to the arbitration court to declare the debtor bankrupt:

• no earlier than 30 days, but no later than 90 days from the date of sending the tax authority’s decision to the bailiff to collect the tax (fee) at the expense of the debtor’s property or the corresponding writ of execution;
• within 30 days from the date of receipt of notifications from federal executive authorities acting as creditors for monetary obligations about the existence of debt on mandatory payments or about debt on monetary obligations to the Russian Federation.

The Supreme Court of the Russian Federation considered the issue of failure to comply with the 90-day deadline for the authorized body to make a decision to send an application to the court to declare the debtor bankrupt. According to the Supreme Court, violation of the deadline does not affect the possibility of recognizing the application as justified and introducing bankruptcy proceedings . However, an application to declare a debtor bankrupt cannot be considered justified if the ability to enforce the requirements specified in the application is lost on the date of the application to the court. The court pointed out that the legislation does not contain consequences for missing this deadline and there is no information that it is preemptive (clause 2 of the Review of judicial practice on issues related to the participation of authorized bodies in bankruptcy cases and bankruptcy procedures applied in these cases, approved by the Presidium of the Supreme Court of the Russian Federation on December 20, 2016).

Thus, the Federal Tax Service can file an application with the court to declare a debtor - a legal entity bankrupt - even after 90 days , while the requirements of the authorized bodies for the payment of mandatory payments are taken into account if the possibility of their forced execution by the time the authorized body applies to the court has not been lost in in accordance with the legislation of the Russian Federation regulating the collection of relevant mandatory payments (clause 3 of article 6, clause 6 of article 41 of the Bankruptcy Law).

In this case, we can talk about the priority of protecting the interests of the state in relation to the interests of private entities. The bankruptcy creditor must first obtain a court decision, while the tax service only needs to make a decision on debt collection on its own . Thus, the tax service receives the right to occupy a more advantageous position in the register of creditors than bankruptcy creditors.

The application of the tax authority to the arbitration court to declare the debtor bankrupt must meet the requirements provided for the application of the creditor (Clause 1 of Article 41 of the Bankruptcy Law). One of these requirements is a reference in the application to evidence of the grounds for the debt and its size (invoices, waybills, etc.) with the attachment of this evidence to the application (clause 2 of article 39 and clause 1 of article 40 of the Law on bankruptcy).

Among the attached evidence there must be a decision of the authorized body to collect the debt at the expense of the debtor’s property (Clause 3 of Article 6 of the Bankruptcy Law), as well as other documents (demand for payment of tax) that confirm the amount of the collected amount and compliance by the authorized body with the established collection procedure .

However, these documents themselves, as well as the fact that the decision to collect was not challenged at the time of filing the application to declare the debtor bankrupt, do not constitute unconditional evidence indicating the validity of the claims presented. When the debtor raises objections on the merits in relation to these claims, the authorized body must prove in the arbitration court the existence of a debt in the amount declared by it.

When initiating bankruptcy proceedings, the Federal Tax Service of Russia is vested, in particular, with the following rights:

• to apply to an arbitration court to declare the company bankrupt;
• to send their representatives to meetings of creditors, interact with other participants in the process and arbitration managers;
• to exercise control over the debtor regarding the fulfillment of current obligations, writing off debt after the end of bankruptcy proceedings.

The legislation makes it possible to defer the application of tax authorities to the arbitration court with an application to declare the debtor bankrupt for a period of up to 6 months in two cases , namely if the debtor presents (clause 4 of the Regulations on the Federal Tax Service):

• a copy of the court decision that has entered into force, certified by the arbitration court, establishing the provision of a deferment or installment plan for the debtor to fulfill obligations under the monetary claims of the Russian Federation;
• documents confirming the collection of overdue receivables, the amount of which exceeds the amount of accounts payable for claims for mandatory payments, as well as the repayment schedule. If the debtor violates the debt repayment schedule, the authorized body is obliged to file an application to declare the debtor bankrupt to the arbitration court within 5 working days.

It will not be possible to avoid bankruptcy by excluding a legal entity from the Unified State Register of Legal Entities by decision of the Federal Tax Service

It is important to know that if the owners of a company for which bankruptcy proceedings have been initiated “abandon” this company in the hope that the tax inspectorate will exclude it as inoperative from the Unified State Register of Legal Entities, then this trick will not help get rid of the debtor company and its debts to creditors .

Let us recall that Federal Law No. 129-FZ dated 08.08.2001 “On State Registration of Legal Entities and Individual Entrepreneurs” (hereinafter referred to as the Registration Law) provides for the possibility of closing a company without observing a lengthy liquidation procedure. We are talking about the exclusion of a legal entity from the Unified State Register of Legal Entities by decision of the registering authority, that is, the tax inspectorate (Article 21.1 of the Registration Law).

The tax inspectorate may (but is not obligated) to liquidate a company without going to court if the following conditions are simultaneously met:

• during the previous twelve months, the legal entity did not submit reports required by the legislation of the Russian Federation on taxes and fees;
• no transactions were carried out on at least one bank account of the company.

The tax authority makes a decision on the upcoming exclusion of a company from the Unified State Register of Legal Entities, publishes it in the State Registration Bulletin, and if within three months from the date of publication there is no response from interested parties (creditors or other persons whose rights and legitimate interests are affected by the exclusion of the company from the Unified State Register of Legal Entities). an application is received with objections regarding the exclusion of the company from the Unified State Register of Legal Entities, the legal entity is declared inactive.

However, in 2015, the Constitutional Court of the Russian Federation recognized Article 21.1 of the Registration Law as partially inconsistent with the Constitution of the Russian Federation, since it allowed the closure of a company in respect of which a bankruptcy case was being considered as inactive, thereby depriving creditors of the opportunity to collect debts (resolution of the Constitutional Court of the Russian Federation dated 05/18/2015 No. 10-P). After this, an amendment was made to Part 2 of Article 21.1 and Part 7 of Article 22 of the Registration Law containing a ban on the registration authority making a decision to exclude a legal entity from the Unified State Register of Legal Entities if there is information about the initiation of bankruptcy proceedings and the introduction bankruptcy procedures .

GC “VneshEkonomAudit” offers a range of legal and consulting services on issues related to the conduct and support of bankruptcy procedures, addressed to:

• owners of debtor enterprises;
• creditors and other interested parties;
• arbitration manager.

More detailed information on our website or by phone (351) 729-85-29

The tax office files for bankruptcy of a legal entity

In this case, the Federal Tax Service relies on government resolution No. 257. It indicates that the fiscal authorities can file a claim for the insolvency of a company in a judicial body no later than three months from the date the bailiff service receives an arbitration decision on the implementation of requirements for the payment of mandatory payments based on the property of a willful defaulter.

The tax service is obliged to initiate bankruptcy no later than five working days from the date of the resolution on this issue. But, as the Supreme Court points out, these are not mandatory deadlines, and they have meaning, most likely of an organizational nature. Let us explain - if the Federal Tax Service “forgot” about ninety days, then this will not prevent it from further initiating bankruptcy of a certain company.

Possibility to file bankruptcy: legislation and nuances

In Russia there is a single law for individual entrepreneurs, legal entities and individuals: this is 127-FZ “On Insolvency” of 2002. But in 2015, important amendments were made to it, and Chapter 10 was put into effect, according to which citizens and individual entrepreneurs are now bankrupt.

The bankruptcy of an individual entrepreneur with debts on taxes and loans is procedurally no different from the bankruptcy of a citizen. That is, an entrepreneur can initially close an individual entrepreneur and then go through the procedure for recognizing financial insolvency as an individual.

Since 2015, the bankruptcy procedure for individual entrepreneurs began to be included in the broader concept of “bankruptcy of individuals,” whereas before that it was carried out according to general procedural rules with non-creditworthy legal entities.

The legislation does not contain a direct indication that individual entrepreneurs are prohibited from closing if there are debts on taxes and fees (entrepreneurs especially often have debts to the Pension Fund). After all, all these debts are not written off, but are transferred to the former businessman as an individual. That is, if the individual entrepreneur closes, then all the debts that he acquired in the course of business activities will have to be paid as an individual within the framework of open enforcement proceedings.

An entrepreneur is advised to close an individual entrepreneur that he no longer intends to engage in as quickly as possible, otherwise he will continue to receive pension contributions.

As part of the procedure for declaring oneself financially insolvent, a former individual entrepreneur can declare himself bankrupt both for debts that arose from conducting business activities and for personal debts on credits, borrowings, etc.

The list of obligations under which an individual entrepreneur can declare himself bankrupt and write off debts includes:

1. Tax debt.
2. Debt on mandatory payments to the budget.
3. Debts on credits, loans (personal and business).
4. Contractual obligations.
5. Other obligations that were formed as a result of individual entrepreneurs conducting financial and economic activities.
6. Fines (for example, before the traffic police).
7. Debts on utility bills.

We must not forget about the entrepreneur’s obligation to notify authorized authorities about his own bankruptcy if their debt obligations meet the following conditions:

1. The amount of debt exceeded 500 thousand rubles.
2. Overdue obligations exceeded 90 days.
3. The debtor is no longer able to make settlements with suppliers, tax authorities, business partners and other counterparties.

When determining the amount of debt at 500 thousand rubles. all debt of the individual entrepreneur is taken into account both to the state and to various legal entities and individuals. It must be remembered that for failure to comply with this obligation, an individual faces a fine in accordance with the norms of the Code of Administrative Offenses, Part 5 of Art. 14.13 in the amount of at least 10 thousand rubles.

If such a large debt has been incurred by an individual entrepreneur for taxes and duties, then the authorized authority represented by the Federal Tax Service can also apply to the court with an initiative to declare him bankrupt. The position that creditors for personal debts of a citizen have the right to initiate his bankruptcy as an individual entrepreneur was confirmed in Resolution of the FAS Plenum No. 51.

But if the amount of debt is less than 500 thousand rubles, then the entrepreneur is also not deprived of the right to declare bankruptcy. To do this, it is necessary that the amount of debt exceeds the total value of all property of the individual entrepreneur, and the citizen has objective grounds to believe that he will no longer be able to fulfill the requirements.

Although the bankruptcy of an individual entrepreneur with debts to the tax authorities is acceptable, the insolvency procedure should be resorted to in extreme cases. In terms of terms, bankruptcy of an entrepreneur is a fairly lengthy procedure. It can last about 6-8 months, and if difficulties arise, up to a year or more. The costs for it, according to minimal estimates, will be 100-150 thousand rubles.

Tax audit in case of bankruptcy of a legal entity

Commercial organizations are planning to undergo insolvency proceedings in order to resolve issues related to the conduct of their activities. It is believed that this is also a good way to avoid coming to the attention of the fiscal authorities, since tax authorities most often do not like to carry out audits of pre-bankrupt companies - in this case, collecting debt on mandatory payments from them seems unlikely.

But there are exceptions when the Federal Tax Service still orders inspections, since in accordance with the law it can carry out audits of companies with economic problems. But in what cases can tax officials still come to the management of companies? Several factors must come together here. Let's move on to analyzing this situation.

Features of tax write-off in bankruptcy

Tax debt is written off for those taxpayers who have signs of financial insolvency.

To declare an entrepreneur or organization bankrupt, they must meet the following mandatory criteria:

• have arrears on taxes and other obligations of RUB 300,000. for organizations and from RUB 500,000. for entrepreneurs;
• do not pay the budget for more than three months in a row;
• do not have cash and other property to pay tax debts.

Important! The tax authority is not interested in the bankruptcy of the taxpayer, since in this case he loses the ability to collect and the tax debt has to be recognized as uncollectible. In this regard, the Federal Tax Service will first apply its collection mechanisms, issuing demands for payment of arrears, penalties and fines and seizing the taxpayer’s accounts. If these measures do not produce results, a bankruptcy petition is filed.

How does the tax office behave in the event of bankruptcy of legal entities?

Once the fiscal authority learns that a commercial organization has filed an application for insolvency status, it needs to decide to conduct an audit against this company. But in general, the capabilities of the Federal Tax Service are limited, since it is a third-priority creditor, which means that it will have little motivation to check the future bankrupt. A meeting of debt beneficiaries also cannot help the tax authority somehow influence the debtor legal entity.

What are the tax procedures for bankruptcy of legal entities?

can participate? It must be said that financial claims from the Federal Tax Service are often not included in the list of beneficiaries of debts during insolvency proceedings. This means that the possibility of receiving tax revenues from a pre-bankrupt payer is reduced. This is due to the fact that fiscal workers do not meet the deadlines for submitting financial claims so that they are taken into account by the arbitration court. In order not to worsen their statistics on the collection of tax payments, specialists can, after some time, cancel the audit of a legal entity that was previously assigned. But, if you answer the above question about the procedure, then this can only be used at the stage of bankruptcy proceedings.

When a company continues to operate, fulfilling its financial obligations for payments, and is at the stages of restructuring its activities, such audits can be fully carried out by the Federal Tax Service. Every leader of his or her organization needs to learn this.

In addition, when a commercial organization goes through bankruptcy proceedings and it turns out that it has a large debt on mandatory payments to the tax authorities, this increases the likelihood of a desk audit by the service. In another case, as already written, this will be unlikely, since the Federal Tax Service lacks much motivation.

Another way to prevent the tax authorities from coming to you is that you can also hold an event similar to closing a business. In this case, we mean such a procedure as the reorganization of an enterprise.

In what situations can the tax office launch an audit?

When a legal entity initiates a bankruptcy procedure, this does not provide a 100% guarantee of receiving or not receiving an audit. It all depends on whether the production meets the established criteria and whether there is reason to pay attention to its activities. The main criteria that attract the Federal Tax Service of the Russian Federation are:

• large gaps between the company's payments to the budget when compared with the industry average;
• preparation and submission of tax reports, which show obvious losses of the company - this must continue for at least two periods;
• reduction in the average salary of employees compared to other industries;
• complete ignorance of questions coming from the Federal Tax Service;
• a quick start to the reorganization or liquidation of an enterprise, not due to a decline in economic activity;
• frequent changes from one tax service to another without reason.

By initiating bankruptcy proceedings and falling under one or more of the listed criteria, an organization can expect that the tax service will take a personal interest in what is happening.

What inspection deadlines does the tax office set during bankruptcy procedures for legal entities?

In accordance with the regulatory legal acts of the Russian Federation, the audit activities of the fiscal authority are carried out within two months, in extreme cases - three months. If we talk about normal practice, then deadlines may be added due to some suspensions of the verification process. Also, fiscal workers have the right to draw up a document including audit details within sixty days. This act will be shown to the payer, who can also appeal it within two months. These are important timing clarifications that should not be forgotten.

If you count the time from the initial period of audit activity to the execution of the decision on payment of mandatory payments, then a period of at least six months can pass, but in practice much longer.

But it must be said that usually tax authorities will be included in the register of creditors only when no more than thirty days have passed since the publication of a message about the insolvency of the debtor commercial organization in the media. Only in this case can the Federal Tax Service participate in the selection of a financial specialist as an intermediary between creditors and the defaulter, and also influence the establishment of a specific insolvency procedure.

What rights does the Federal Tax Service have in the bankruptcy process?

After entering into a bankruptcy case, the Federal Tax Service acquires rights that allow it to protect the interests of the federal budget.
The powers of the tax authority include:

• the right to be included in the register of claims of the debtor’s creditors;
• the right to participate in a meeting of creditors and vote on issues related to the bankruptcy procedure;
• the right to appeal against the actions or inactions of an arbitration manager who improperly performs his duties.

As a rule, representatives of the Federal Tax Service participate in all court hearings and closely monitor the bidding process for the purpose of selling the debtor’s property. The tax authority may invite the arbitration manager to challenge dubious transactions in order to return the property to the bankruptcy estate.

How is a tax audit carried out in the event of bankruptcy of legal entities?

Such an audit is carried out in accordance with the Tax Code, as indicated by Article 88. To carry it out, the permission of the heads of a commercial organization or the Federal Tax Service is not required. During the audit process, the company's financial documents are analyzed. If necessary, tax officers may require explanations, for example, regarding the balance sheet. You should also expect that they will request other documents to analyze the taxpayer's situation.

All requests from the fiscal authority regarding discrepancies found in accounting must be satisfied within five days when the commercial organization received these notices.

When a legal entity undergoes bankruptcy of legal entities by the tax inspectorate

, the Federal Tax Service may involve third parties who will help audit the position of the enterprise. At the same time, the person being checked may not find out about this until he receives a document with the data obtained during the analysis of the company.

What is the procedure for writing off taxes in bankruptcy?

The procedure for writing off taxes in bankruptcy is carried out in several stages.
First, procedures are introduced in relation to the entrepreneur or organization, the purpose of which is to restore solvency. If the debts cannot be repaid, the debtor moves to the stage of selling the property. The process of bankruptcy of an organization and entrepreneurs includes several stages.

Bankruptcy procedure for organizations

To write off tax debt, a company must go through the following procedures:

1. Observation. It is introduced to analyze the financial condition of the debtor, signs of insolvency are identified and creditors other than the tax authority are identified. If the results of the procedure determine that the company can be restored, the debtor goes into the procedure of financial rehabilitation or external management. If this is not possible, bankruptcy proceedings will immediately begin.
2. Financial recovery. The debtor independently prepares a plan for repaying debts on taxes and other obligations, and it is approved at a meeting of creditors and in court. Next, he must pay tax arrears, penalties and fines according to the approved schedule. When the creditors' claims are satisfied, the bankruptcy case is terminated.
3. External control. Appointed to preserve the company if the founders do not intend to close the business. All powers to manage the debtor are transferred to an external manager, who, together with the creditors, selects rehabilitation measures for the debtor. For example, the sale of part of the property, modernization of production, collection of debts from counterparties, closure of unprofitable areas. If the company emerges from the crisis, taxes are paid in full and the court terminates the bankruptcy case.
4. Competition proceedings. Introduced if it is impossible to restore the company's solvency. All the debtor's property is sold, and the proceeds are used to pay off debts. If there is not enough money, the remaining tax debt will be written off.

Most organizations that have accumulated large tax debts undergo two procedures: monitoring and bankruptcy proceedings. This is due to the fact that if there are tax debts, it is difficult for an organization to restore its financial position. It is much more profitable to write them off and open a new company.

We must remember! For a long time, bankruptcy was used by companies to write off tax debts. Many business owners have abused this mechanism by deliberately accumulating debt to avoid paying taxes. Then the organization's property was withdrawn and bankruptcy was carried out. Currently, the tax authority is actively using mechanisms to challenge the debtor’s transactions and bring the founders to subsidiary liability. This allows you to return illegally seized property to the debtor and pay off tax arrears at his expense. By bringing the founders to subsidiary liability, losses incurred due to intentional violation of tax obligations are recovered from them. Moreover, this type of debt cannot be written off through bankruptcy.

Bankruptcy procedure for entrepreneurs

Write-off of an entrepreneur's tax debt is carried out in two stages:

1. Debt restructuring. An entrepreneur or tax authority draws up a debt restructuring plan, which sets out a schedule for transferring unpaid taxes to the budget. The plan is approved at a meeting of creditors and then in court. Next, the debtor is obliged to begin its execution. If the schedule is faithfully followed and the taxpayer pays off the budget within three years, the bankruptcy case will be terminated.
2. Sale of property. The procedure is introduced in the event of failure to implement the restructuring plan or insufficient property for the first stage. The financial manager identifies all the property the entrepreneur has and sells it at auction, leaving the owner only with what cannot be sold. The proceeds are used to pay off tax debts and pay other obligations. If there is not enough money, unpaid debts are written off.

Important! An entrepreneur in bankruptcy proceedings risks more than an organization. The law establishes that he is liable to creditors with all his personal property. Whereas a company has limited liability. Thus, in the sale procedure, a car or apartment belonging to the debtor as an individual can be sold.

How does a desk audit take place in case of insolvency of a legal entity?

It is carried out on the territory of the fiscal authority, that is, employees do not travel to the site of the debtor company. In this case, tax authorities analyze the documents provided by the enterprise and, if necessary, clarify the information with the debtor.

But how can a taxpayer avoid this procedure? Several factors must come together here. Firstly, the company always submitted its reports on time, which indicates its responsible attitude. Secondly, she did not have receivables and payables. Thirdly, the company provided the Federal Tax Service with a report with a zero balance. Fourthly, a legal entity has one owner, that is, a founder. And lastly, the bankrupt company has not carried out work for three years.

The role of the bankruptcy department

You can contact the Federal Tax Service of Russia, the department responsible for ensuring bankruptcy procedures, to obtain maximum information on issues of interest. The department for ensuring bankruptcy procedures at the tax office is distinguished by its work in certain areas and performs the functions of providing all necessary documents. Employees of the Federal Tax Service of Russia department are engaged in:

• preparation and collection of documents for the sale of the debtor’s property;
• drafting documents for debt collection;
• preparation of all necessary papers to begin the bankruptcy procedure;
• carries out control over the payment of all fines imposed on persons;
• writes off debts that cannot be paid;
• analyzes the financial condition of the enterprise and the debtor;
• draws up a report on the causes of debt;
• prepares and sends requests for payments to legal entities;
• has the right to stop all operations performed on the debtor's accounts.

To submit an application and the necessary documents for the insolvency procedure, meetings can be organized with creditors, including territorial tax authorities.

How is a tax audit carried out in case of bankruptcy of legal entities on the site of the enterprise?

If we talk about laws, they do not provide for an on-site audit, since by inspection we mean such a procedure on the site of a commercial organization. For this to happen, you must obtain permission from the head of the fiscal authority. At the same time, the top management of the debtor company or the financial manager must assist tax employees in their work on the territory of the enterprise so that they can properly inspect and analyze financial documents. By the way, the debtor also has the right to be provided with witnesses during the inspection and seizure of documentation. This information can be very useful for financial managers of a commercial organization - take it into account.

The question arises, what will happen to the audit when, during the implementation process, the debtor company begins to undergo insolvency proceedings? The verification will take place as stated in accordance with the law, but now the requirements of the Federal Tax Service will be satisfied only after the latter are included in the list of creditors.

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General rules

A legal entity is considered unable to satisfy the claims of creditors if there is a debt in excess of 300,000 rubles and unpaid for more than three months. This is a general rule that allows a creditor to file an application to declare the debtor bankrupt.

Federal Law No. 127-FZ of October 26, 2002 “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law) contains special rules allowing the Federal Tax Service of Russia to initiate bankruptcy procedures. An ordinary creditor needs a judicial act that has entered into force to go to court with such a statement. The tax service is sufficient to have the inspector’s decision to collect the debt from the debtor’s funds or other property. If the collection of taxes is undisputed, a claim can be filed 30 days after such a decision is made. If mandatory payments are collected in court, then the right to file a bankruptcy petition arises with the Federal Tax Service of Russia 30 days after the court decision enters into force.

The participation of the Federal Tax Service of Russia in the bankruptcy procedure is regulated by a special regulation (approved by Decree of the Government of the Russian Federation of May 29, 2004 No. 257 “On ensuring the interests of the Russian Federation as a creditor in a bankruptcy case and in the procedures applied in a bankruptcy case”, hereinafter referred to as the Regulation). In accordance with it, tax authorities must decide whether to file for bankruptcy or not within 30 to 90 days from the date of sending the order on forced collection of debt or other enforcement document to the bailiff.

Use at work

One of the signs of a debtor’s insolvency is the size of the total debt for mandatory payments - at least 300,000 rubles. It should not include requirements for payment of personal income tax. The fact is that they belong to the second stage. And the size of second-priority obligations is not taken into account to determine the signs of bankruptcy. Even if the tax authorities take into account the requirements for payment of personal income tax when calculating the debt and the amount received allows them to go to court with an application to introduce a monitoring procedure, they will be denied (resolution of the Volga-Vyatka District Administrative Court dated March 14, 2016 No. F01-311/2016, dated October 16, 2015 No. Ф01-4117/2015).

How to postpone bankruptcy proceedings

The Regulations provide for two grounds that will force the tax authority to postpone filing a bankruptcy application (clause 4 of the Regulations).

First.

The debtor will receive a court decision to defer or installment payment of the debt.

Second.

The debtor will present documents that prove that he intends to collect the overdue “debt”, its amount exceeds his tax debts, and will attach to them a debt repayment schedule. Please note that a judicial act for the collection of “debts” issued in favor of the debtor company does not in itself constitute such evidence.

Example

The debtor company won the case in court to collect receivables from the counterparty, which are sufficient to pay off the obligations of the potential bankrupt. The court of first instance regarded the presence of a court decision in favor of the debtor as a basis allowing the Federal Tax Service of Russia to refuse to introduce a monitoring procedure. However, the appeal and cassation supported the tax authorities' demands. They indicated that the presence of a judicial act on the collection of debt from the counterparty only indicates the possible receipt of funds to repay the “debt”. But it does not at all prove the reality of such a penalty (resolution of the Volga Region Autonomous District Court dated March 12, 2015 No. F06-20862/2013).

***

The above two reasons will help to postpone the bankruptcy procedure for up to 6 months. But if during this time the debtor does not fulfill his obligations, then there will be no further postponement. An exception can be made for strategic enterprises or organizations of the military-industrial complex and only by decision of the President or the Government of the Russian Federation.

If the authorized body, despite the specified grounds, nevertheless applies to declare the debtor bankrupt, the court has the right to return the application to the Federal Tax Service of Russia before accepting it for proceedings. However, this scenario is not very common, since the Bankruptcy Law does not oblige the inspectorate to indicate the existence of circumstances that allow the filing of an application to be postponed. Most often, the court learns about them already in the process of considering the application of the tax authority. And this is an independent basis for refusing to introduce an insolvency procedure or for terminating bankruptcy proceedings (Resolution of the Federal Antimonopoly Service of the Moscow District dated March 20, 2014 No. F05-1900/2014).

Other reasons for which the Federal Tax Service of Russia has the right to either delay filing an application for up to two months or refuse to initiate bankruptcy proceedings are listed in clause 5 of the Regulations. Let us emphasize that this is precisely the right of the tax service, but not an obligation.

First.

The company will appeal the inspector's decision to collect or the actions of officials in an administrative manner or will go to court with a demand to declare them illegal, provided that the appeal can lead to the termination of the grounds for filing an application for declaring the debtor bankrupt.

Second.

The tax authority will receive information about the restoration of the debtor’s solvency, i.e., it will discover liquid property, or the debtor’s manager or the owner of the property will take actions aimed at creating conditions for debt repayment, etc.

In the event that tax authorities do not have information about the debtor’s assets sufficient to pay off legal costs in a bankruptcy case, they may take a time out to search for property. Then the time to file a bankruptcy application increases to 1.5 years.

If the Federal Tax Service of Russia does not have information about the debtor’s property, then, most likely, the inspectorate will postpone filing a bankruptcy application, since the courts currently require the authorized body to provide information about the debtor’s property. The tax authority must attach evidence of the existence of property to the application for declaring the debtor bankrupt. This is due to the obligation of the applicant in bankruptcy cases to reimburse court costs, as well as pay remuneration to the insolvency administrator.

Note!

The court accepts as evidence of the debtor's property:

— Rosreestr’s responses to inquiries about real estate registered in the debtor’s name;

- certificates from the traffic police about the debtor’s vehicles.

— answers, other documents received during the search by the tax authority or the bailiff service to search for the debtor’s property, which may be subject to foreclosure.

- evidence justifying the likelihood of property entering the bankruptcy estate as a result of the involvement of persons bearing subsidiary liability for the obligations of the debtor (for more information about the subsidiary liability of the director and founders, read on page 48 - example ed.)

***

In relation to subsidiary liability, the authorized body must justify both the existence of grounds and the real possibility of involving specific persons, for example, a director or participant. In this case, the arbitration court will accept the application (resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 20, 2006 No. 67, Arbitration Court of the West Siberian District dated October 6, 2015 No. F04-24871/2015).

Important!

The Federal Tax Service of Russia will not initiate bankruptcy proceedings if the debtor does not have enough property to pay off tax obligations.

***

As we see, the head of the company has tools to delay or prevent bankruptcy. The main thing with such a threat is to get additional time to pay off tax debts.

Is control exercised by tax authorities when an enterprise goes through bankruptcy?

As already indicated, fiscal authorities audit the company as usual, even during the process of obtaining insolvency status. Also, during this procedure, the top management of the enterprise no longer participates in the management of the company - now this is the prerogative of the arbitration manager. Therefore, the Federal Tax Service sends its requests for new data only through it in accordance with Russian legislation. It is the court that appoints this specialist and determines his powers.

Since mandatory tax payments are third priority claims, it is very unlikely that the company will satisfy these claims. Therefore, after the sale of the enterprise’s property, its debts will be considered repaid. But the Federal Tax Service can try to solve this problem in the following way.

She can sue the managers and owners of a problematic commercial organization so that they can be held vicariously liable. Especially if it turns out that it was a deliberate bankruptcy. Because unwillingness to pay taxes in our country is a criminal offense. When the fiscal audit ends, a report on tax violations is created, after which the Federal Tax Service decides to bring the debtor to additional payment of tax payments, and if the company does not do this, then the tax authorities transfer the case to the Ministry of Internal Affairs, which can already bring the top management to criminal liability and initiate a case in their regard.

Subsidiary liability of founders (participants) and the head of the taxpayer

Confirmation of the actions of the debtor-taxpayer not in the interests of creditors and the state (budget) will be not only the conclusions of the arbitration manager, but also the decision of the tax authority that has entered into legal force.

In the bankruptcy procedure, at a meeting of creditors, the authorized body will undoubtedly vote in favor of filing an application with the arbitration court to bring the director and participants (founders) of the debtor to subsidiary liability. And when considering this application, the arbitration court will definitely check the information I have above, including those contained in the conclusion about the presence of signs of deliberate bankruptcy of the enterprise.

The result of these measures will be the collection of the entire amount of debt outstanding by the taxpayer from the individuals (sometimes legal entities) who control it. Particular attention should be paid to the fact that a change in the persons controlling the debtor (purchase and sale of shares, change of the sole executive body, reorganization of the company in any form, etc.) will not relieve liability from these persons, because Those persons are brought to subsidiary liability precisely during the period of whose functions the debt arose.

Thus, in the absence of a timely legal response from the taxpayer, the tax authority has every opportunity to collect the entire amount of arrears on taxes and fees, fines and penalties from the head and participants of the taxpayer enterprise. At the same time, the lion's share of decisions made by tax authorities does not meet the requirements of substantive and procedural legislation and can be canceled at the initial stages by submitting a competent application to the arbitration court by a tax dispute lawyer.

What do the results of an audit by the tax service include?

At the end of the audit, the tax service may point out to the bankrupt company some violations that are usually encountered during the analysis of financial documentation. The absence of errors is usually not encountered often in practice.

Next, the Federal Tax Service draws up a document on the violations found and presents this report to the debtor. The company has the right to file a complaint with arbitration, but if this is not done, the fiscal authority will then demand payment of arrears on mandatory payments. But, when it comes to a legal entity that is going through insolvency proceedings, it may require that unpaid tax debts be included in the list of claims of the beneficiaries of the debt. At the same time, the tax office must have time to file a lawsuit to include its organization in the register of bankruptcy creditors.

Process steps

• First, a person must collect data on his own property, transactions exceeding fifty thousand rubles, and collect information on non-payment of debts to creditors.
• Based on the available material, the potential bankrupt must draw up an application in the prescribed form.
• The court verifies the accuracy of the information and makes an appropriate decision.
• If insolvency is proven by a court, the debtor's property is seized. An arbitration manager may be appointed who will be given the right to dispose of any assets of the bankrupt.
• The next stage is a court decision to begin restructuring or selling the property. During the restructuring, the manager will develop a debt repayment plan within a maximum of thirty-six months. The order of payment of debts is determined by the manager. First of all, debts to creditors are repaid. The first in line are always the creditors to whom the bankrupt owes large sums of money. Therefore, the order of tax payment during bankruptcy is not a priority. The procedure for selling property will be assigned only after recognition of the fact of a lack of regular income of an individual. The debtor's property constituting the bankruptcy estate. Will be sold at open auction.
• The final stage is the assignment of bankrupt status. When an individual is officially declared bankrupt, all financial obligations will be canceled. In case of bankruptcy, taxes are also written off.

The Federal Tax Service files for bankruptcy of the company: what to do

Experts note that the fiscal service can use some methods to receive arrears on tax payments. For example, she carries out an audit in the territory of a potential bankrupt, after which she finds facts that the company received unjustified tax profits. Next, the tax office files a claim with arbitration so that it declares the company insolvent, and also holds the top management of the enterprise to additional responsibility for the financial obligations of the problematic commercial organization. This scheme, according to lawyers, has been increasingly used lately. Perhaps this information will be useful to managers and owners of companies going through insolvency proceedings.

Therefore, we can say that with this method, the Federal Tax Service plays proactively so that some payers of taxes and fees cannot file for bankruptcy during the implementation of the fiscal audit and assist the tax authorities in this procedure. Since the disagreement of companies, obviously, forms a certain judicial practice in favor of the latter. Next, we will consider a specific procedure on the part of the Federal Tax Service, which every head of an enterprise should know in order to prevent the risk of bankruptcy on the part of the tax service.

Let's look at the following sequence that the service carries out when interacting with a commercial organization:

• The fiscal authority warns the enterprise that it will conduct an audit on the territory of the enterprise. The purpose of a tax audit is to identify unjustified tax benefits, after which the Federal Tax Service will hold the company's owners administratively and criminally liable if they do not pay off the debt on mandatory payments within a short period of time;
• Next, the tax authorities decide to involve the tax payer in paying additional arrears as an additional charge after the audit. In this case, this decision must be approved by arbitration of the first or second instance;
• The Federal Tax Service issues a demand for repayment of the debt and, if necessary, turns to the bailiff service to collect the debt;
• After this, the tax authorities file a claim in court for bankruptcy of the legal entity;
• At the same time, another lawsuit brings top management and business owners to vicarious liability.

The YurlexProf company can help you go through bankruptcy on your terms, so that debts on obligatory payments are written off as much as possible. Our professional lawyers have extensive experience and will do everything to ensure that your problem is resolved in the shortest possible time. Order the service now, and the debtor’s life will begin from a new point without large financial obligations.

What is “tax bankruptcy”

There is no such term officially in the legislation, but in practice it is used more and more often. It is understood as a bankruptcy procedure initiated at the request of the tax authority.

Often the Federal Tax Service is the main or only creditor in such cases. Note that the legislation provides a number of advantages for the tax service compared to other creditors:

• the deadline for filing claims in bankruptcy proceedings can be extended to six months;
• a complicated procedure for reviewing payments received by the Federal Tax Service as part of appealing the debtor’s transactions;
• the opportunity to declare that the debtor’s manager is held vicariously liable, provided that more than half of the debt arose as a result of violations of the law.

We also note that current legislation provides for the possibility of tax authorities to involve not only the debtor himself and his manager, but also beneficiaries or affiliated persons in repayment of debt. This often happens as part of a bankruptcy procedure.

For two years now, a procedure has been in force under which the conclusion of a compensation agreement in favor of one of the bankruptcy creditors provides for his obligation to contribute part of the value of the received property to the bankruptcy estate. For tax authorities, this became an opportunity to partially repay their debt because... Previously, such agreements made it possible to close the claims of all creditors, except for the authorized state body, which does not have the right to accept property and property-related obligations as repayment.

As the heads of the tax department note, for a long time business tried to get rid of problems through bankruptcy, while taxes practically did not go into the budget and were written off as hopeless. Expanding the possibilities of collection both at the pre-bankruptcy stage and in the procedure itself has changed the percentage of repayment of tax debts upward. In fact, bankruptcy law currently prevents a company from being deliberately bankrupted in order to evade tax debt.

What are the consequences

Not every potential bankrupt thinks in advance about what consequences await him after declaring financial insolvency. Among the negative aspects it is worth highlighting:

• It is necessary to notify banking institutions of your status.
• It is prohibited to hold leadership positions and be part of the founders of a legal entity.
• In some cases, the court may prohibit travel abroad.
• Re-registration of insolvency status is possible only after five years.
• Information about the insolvency of each individual citizen is entered into a special register.

It is necessary to know how the procedure for canceling current taxes in the event of bankruptcy of citizens is carried out. Before deciding to initiate financial insolvency, it is worth consulting with a competent lawyer who will help you collect documents, represent your interests in court and provide support at every stage of the process. Resolution of issues regarding taxes and bankruptcy should be trusted to professionals.

Bankruptcy with debts to the Federal Tax Service

Bankruptcy is the only absolutely legal way to liquidate a company with debts to the Federal Tax Service, the Pension Fund of the Russian Federation, the Federal Migration Service and other government bodies. As a result of the bankruptcy procedure, all debts of the enterprise are written off, and the legal entity is liquidated with the corresponding entry being made in the Unified State Register of Legal Entities. Moreover, in situations where there is a debt to the budget that the taxpayer cannot repay (pay accrued taxes, fines, penalties), the law establishes not the right, but the obligation of the debtor to file a bankruptcy petition, for failure to comply with which liability is determined. The tax inspectorate, acting as a creditor in bankruptcy proceedings, does not have any additional advantages, and its claims are satisfied in the order of priority - in third place. The tax inspectorate learns that an enterprise has begun bankruptcy proceedings from a publication in the Kommersant newspaper (a publication in which all announcements related to bankruptcy are published), after the court has made a decision declaring the debtor bankrupt and has initiated a monitoring procedure. She submits her claims through the arbitration court in compliance with the conditions established by bankruptcy law for all creditors. For enterprises with debts to the Federal Tax Service, the most acceptable are two methods of bankruptcy: 1) simplified bankruptcy procedure (if the decision of the tax authority has not entered into force); 2) at the request of the debtor himself (if the decision of the tax authority has entered into force). The first method is often resorted to in order to speed up the bankruptcy procedure and bypass the observation stage. However, if the position of the legal entity before the introduction of the voluntary liquidation procedure had obvious signs of bankruptcy (for example, the presence of a large loan against the background of a decrease in turnover, the presence of established arrears, etc.), then the use of a simplified procedure will provide additional grounds for assessment in the aggregate the presence of signs of deliberate or fictitious bankruptcy (in accordance with Articles 196 and 197 of the Criminal Code of the Russian Federation, criminal liability is established for crimes in the field of bankruptcy). In other words, before bankruptcy, it is necessary to analyze the actual state of the organization and its financial indicators in order to protect business owners and managers from unnecessary risks, in particular, from criminal and subsidiary liability. If the debtor already has a tax inspectorate act that has entered into force with additional taxes, fines and penalties and realizes that he is unable to pay it off, then in this case it is advisable to apply to the Arbitration Court for bankruptcy. Waiting for the tax authority to file a bankruptcy petition is an extremely unfavorable strategy for the debtor, since in this case an insolvency practitioner will be appointed upon the recommendation of the tax inspectorate and will defend its interests. It is important for the debtor to get ahead of the tax authorities by independently entering the bankruptcy procedure in order to carry out preliminary preparations for the company for bankruptcy and nominate a loyal arbitration manager. According to the Tax Code of the Russian Federation, tax officials are required to report to the police (Department for Combating Economic Crimes and Department of Tax Crimes) that there is tax evasion in the amount of more than 2 million rubles, i.e. about a crime in accordance with Art. 199 of the Criminal Code of the Russian Federation. Taking into account the provisions of the updated legislation on criminal liability in the field of tax crimes, it makes sense for the debtor to try to appeal the tax authorities’ decision on arrears to a higher tax authority, and then to an arbitration court. If tax claims can be challenged in an arbitration court, its decision will be decisive in the matter of closing the criminal case. In addition, according to the current bankruptcy legislation, the debtor has the opportunity to challenge the validity of the inspection requirements in the bankruptcy procedure itself and, in parallel, in a separate proceeding, challenge the very decision to accrue arrears. Thus, the likelihood of fighting off inspection claims increases significantly. Currently, judicial practice is actively developing to bring the persons controlling the debtor (founders, management) to subsidiary liability for the debts of the organization. This is due to the fact that the legislator plans to improve the bankruptcy instrument as an institution for the financial recovery of the debtor, and not as an institution for the liquidation of a legal entity. Previously, this practice was mainly formed by the Deposit Insurance Agency, which carries out bank bankruptcy procedures. In total, the Agency brought several dozen people to vicarious liability in the amount of more than 3 billion rubles. Since April 2009 a similar practice began to emerge in relation to ordinary business entities (Determination of the Moscow City Court dated April 30, 2009 in case No. 33-10268). Thus, in order to protect itself from the risks of criminal and vicarious liability, the debtor is not recommended to use alternative methods of liquidation, such as reorganization in the form of a merger, reorganization in the form of affiliation or change of the general director and founder. A more effective strategy is to seek qualified legal assistance to competently conduct the bankruptcy procedure.

Dmitry Igumnov, head of practice “Liquidation of companies”, legal

07.10.2010

Legal