Reporting on taxes and contributions upon liquidation of an organization

Hello! My name is Dasha and I have been registering legal entities for several years; at Profdelo I am the registration manager.

I personally handle all client registration matters from accepting orders to handing over completed documents to clients. My main specialization is LLC liquidation.

People often come to us who tried to liquidate themselves, but for some reason did not complete the process, or did not even start, but were refused. I will tell you the 11 most common mistakes that owners make when liquidating companies.

The first and most important mistake is an irresponsible head of the liquidation commission or liquidator

When choosing a person for this position, remember that he must always be in the “access zone” throughout the entire liquidation period. Since it is he who will be the applicant and the responsible person instead of the general director. This choice should be approached with special responsibility. By choosing an unscrupulous head of the liquidation commission (hereinafter referred to as the liquidator), you run a high risk of “freezing the liquidation process”, and you will have to change the liquidator, which means additional money and time delays.

In our practice, there was a company in which an unscrupulous liquidator simply disappeared the word “hedgehog in the fog”, as a result of which we had to look for a new liquidator and re-register the appointment. This entailed a colossal loss of time and, accordingly, additional expenses that cost a pretty penny.

Also, many believe that the person responsible for the liquidation of the company is necessarily the general director or one of the participants of the company. In fact, any other person, even one who has nothing to do with the company, can be appointed as the person responsible for liquidation.

The second and very common is late submission of notification.

At the first stage of liquidation, when the corresponding decision is made, it is important to remember that a notice of liquidation must be submitted to the registration authority within three working days from the date of the decision on liquidation.

If you delay the three-day deadline for submitting a notice of the start of the liquidation procedure, the tax authority will impose a fine of 5,000 rubles. for late submission of notification.

A simple example that will clearly show how easy it is to not have time to submit a notification: the decision to liquidate was made on November 1, 2016, for some reason the notary got to the notary on November 3, 2016, and the notification to the registration authority was submitted on November 5, 2016 although the deadline for submission was November 4, 2016.

Procedure for liquidation of legal entities

Any company can be liquidated according to the rules established by current legislation. During the process of liquidation, the existence of the company as a legal entity ceases, as a result of which it loses its legal capacity (Article 49 of the Civil Code of the Russian Federation).

Liquidation of a company occurs in the manner prescribed by civil law. Liquidation of a taxpayer is accompanied by making a corresponding entry in the Unified State Register of Legal Entities. The body whose responsibilities include making such an entry is the Federal Tax Service, as well as its territorial divisions.

The liquidation procedure begins with a decision to terminate the company's activities, which is made by its founders. After making such a decision, it is necessary to notify the tax authority, which will become the basis for making an entry that the process of liquidating the company has begun in the Unified State Register of Legal Entities.

In parallel with this, a liquidation commission is appointed. The timing of liquidation is agreed upon with the tax authority. Throughout the entire procedure, the legal entity continues to exist as a business entity, the management of which passes to the liquidation commission.

Creditors must be notified of the commencement of the liquidation procedure.

The notice is made through a printed publication and sent directly to creditors.

The responsibilities of the liquidation commission include settlements with the company's creditors. After the expiration of the two-month period, an interim balance sheet is drawn up. After settlements with creditors have been made, a liquidation balance sheet is drawn up and submitted to the tax authority. After its approval, a corresponding entry is made in the Unified State Register of Legal Entities and the company ceases to exist.

Third - incorrect filling out of the application for publication in the "Bulletin"

If you mistakenly indicate the wrong data when filling out an application and send it for verification and further publication, then the message with false information will be invalid. This will lead to the need to fill out the application again, a publication fee and, of course, a loss of time.

After the first stage of liquidation has been successfully completed, it is necessary to submit an application for publication in the journal “Bulletin of State Registration”.

At this stage, you need to pay close attention to filling out the application. To avoid making mistakes, pay attention to the fields you are filling out, for example, pay attention to the “decision made” field - in it you need to indicate verbatim which supreme body made the decision on liquidation, exactly as in your protocol or the decision of the participants.

Sixth - incorrectly drawn up interim and liquidation balance sheets

If there are discrepancies in the dates or OKPO, OKOPF, OKFS codes in your approved interim liquidation balance sheet (PLB) or final liquidation balance sheet (LF), the tax authority will issue a refusal, in such a situation you will lose time and incur material losses to re-certify the form.

At the stage of filling out the interim liquidation balance sheet, you should pay attention to filling out the PLB form itself. The dates for drawing up the balance sheet must be identical to the date of the decision to approve the interim liquidation balance sheet, and all codes must also match.

A little about the liquidation balance sheet itself. As in the previous stage, it is worth paying attention to the correct registration and compliance with the date setting, as well as the reliability of the entered codes OKPO, OKOPF, OKFS. The most important thing: by this moment, the company’s balance sheet should no longer reflect any assets and liabilities, except for the authorized capital and funds due to be paid by the participant. If other assets or liabilities are reflected in the balance sheet, then such a company will not be liquidated .

Fulfillment of tax obligations during liquidation or reorganization of a legal entity

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According to paragraph 1 of Article 49 of the Tax Code of the Russian Federation, the obligation to pay taxes and fees (fines, fines) of a liquidated organization is fulfilled by the liquidation commission at the expense of the funds of the said organization, including those received from the sale of its property.

The procedure for liquidation of a legal entity is regulated by the provisions of Articles 61 - 65 of the Civil Code of the Russian Federation.

A demand for the liquidation of a legal entity may be presented to the court by a state body or local government body, which is granted the right to make such a demand by law. By a court decision on the liquidation of a legal entity, its founders (participants) or the body authorized to liquidate the legal entity by its constituent documents may be assigned responsibilities for carrying out the liquidation of the legal entity.

In accordance with subparagraph 4 of paragraph 3 of Article 44 of the Tax Code of the Russian Federation, the obligation to pay taxes and (or) fees terminates with the liquidation of the taxpayer organization after all settlements with the budget system of the Russian Federation have been made.

The Tax Code of the Russian Federation does not provide for the termination of a taxpayer’s obligation to pay taxes (penalties, fines) while it is in the liquidation stage.

In this regard, according to the opinion of the Ministry of Finance of the Russian Federation, set out in Letter No. 03-02-07/1-57 dated March 17, 2006, the accrual of penalties upon liquidation of a legal entity in the manner prescribed by the Civil Code of the Russian Federation ceases from the moment of entry into the Unified State Register legal entities records on the liquidation of a legal entity.

In accordance with Article 62 of the Civil Code of the Russian Federation, the founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity are obliged to immediately notify in writing the authorized state body for entering into the unified state register of legal entities information that the legal entity is in liquidation process.

According to paragraph 1 of Article 46 of the Tax Code of the Russian Federation, in case of non-payment or incomplete payment of the tax within the established period, the obligation to pay the tax is compulsorily fulfilled by foreclosure on the funds in the accounts of the taxpayer (tax agent) - organization or individual entrepreneur in banks.

As arbitration practice shows, while a taxpayer is in the process of liquidation, the tax authority does not have the right to carry out actions to indisputably collect taxes and penalties by making a decision to collect them from the taxpayer’s funds in bank accounts and, on the basis of this decision, issue collection orders for write-off funds to the bank. This contradicts the provisions of Article 49 of the Tax Code of the Russian Federation and entails a violation of the order and priority of satisfying the claims of other creditors of the taxpayer. (Resolution of the Federal Antimonopoly Service of the North-Western District dated November 25, 2004 in case No. A05-6517/04-13; Resolution of the Federal Antimonopoly Service of the Ural District dated November 9, 2005 in case No. F09-5013/05-S7).

Experts from the financial department hold a slightly different point of view. Thus, the Letter of the Ministry of Finance of the Russian Federation dated November 25, 2005 No. 03-02-07/1-314 states that:

“the submission by the tax authority of a collection order to the bank to collect tax and the bank’s execution of this collection order before the preparation of the interim liquidation balance sheet do not violate the rights and legitimate interests of the liquidated organization - the bank’s client and its creditors, since the creditors of this organization have not been identified until the end of the procedure for their identification established by law .

Taking into account the above, we believe that the collection of taxes and fees in accordance with Art. Art. 46 and 47 of the Code before the approval of the interim liquidation balance sheet does not contradict the norms of the Code.”

If the funds of a liquidated organization, including those received from the sale of its property, are insufficient to fulfill the obligation to pay taxes and fees, penalties and fines, the remaining debt must be repaid by the founders (participants) of the said organization within the limits and manner established by law Russian Federation.

When applying this rule, it is necessary to take into account that, since the legislation of the Russian Federation on taxes and fees does not provide otherwise, this is only possible if, in accordance with civil law, the founders (participants) of a liquidated legal entity bear subsidiary liability for its debts (clause 15 of Resolution No. 41).

According to paragraph 3 of Article 56 of the Civil Code of the Russian Federation, the founder (participant) of a legal entity or the owner of its property is not liable for the obligations of the legal entity, and a legal entity is not liable for the obligations of the founder (participant) or owner, except for cases provided for by the Civil Code of the Russian Federation or the constituent documents of the legal entity .

The Civil Code of the Russian Federation provides for subsidiary liability of the founders (participants) of a legal entity only in relation to unitary enterprises and institutions (Articles 115, 120 of the Civil Code of the Russian Federation). In accordance with paragraph 6 of Article 63 of the Civil Code of the Russian Federation, if the liquidated state enterprise has insufficient property, and the liquidated institution has insufficient funds to satisfy the claims of creditors (in this case, the tax authorities), the latter have the right to file a claim in court to satisfy the remaining part of the claims at the expense of owner of the property of this enterprise or institution. The order of fulfillment of obligations to pay taxes and fees during the liquidation of an organization among settlements with other creditors of such an organization is determined by the civil legislation of the Russian Federation.

According to Article 64 of the Civil Code of the Russian Federation, the claims of creditors of a legal entity during its liquidation are satisfied in the following order:

first of all, the claims of citizens to whom the liquidated legal entity is liable for causing harm to life or health are satisfied, by capitalizing the corresponding time-based payments, as well as for claims for compensation for moral damage;

secondly, calculations are made for the payment of severance pay and wages of persons working or who worked under an employment contract, and for the payment of remuneration under copyright contracts;

thirdly, settlements are made for mandatory payments to the budget and extra-budgetary funds;

fourthly, settlements with other creditors are made.

Thus, calculations for taxes and fees belong to the third stage. The claims of creditors of each priority are satisfied after the claims of the creditors of the previous priority are fully satisfied (except for claims secured by collateral). If the property of a liquidated legal entity is insufficient, it is distributed among the creditors of the corresponding priority in proportion to the amounts of claims to be satisfied. The claims of creditors that are not satisfied due to the insufficiency of the property of the liquidated legal entity are considered to be satisfied.

Paragraph 4 of Article 49 of the Tax Code of the Russian Federation establishes that if an organization in liquidation has amounts of taxes or fees (fines, fines) overpaid by this organization, then these amounts are subject to offset against the debt of the liquidated organization for taxes, fees (penalties, fines). The amount of overpaid or overly collected taxes, fees (penalties, fines) subject to offset is distributed in proportion to the arrears of other taxes, fees and debts of the liquidated organization for penalties, fines, subject to payment or collection into the budget system of the Russian Federation, control over the calculation and payment of which is entrusted to the tax authorities. The previously valid version of part one of the Tax Code of the Russian Federation provided for the need for the taxpayer to submit an application for offset. However, Federal Law No. 137-FZ abolished such a requirement. If the liquidated organization has an overpaid or overcollected amount of tax, fee, penalty or fine and at the same time there is no debt on other taxes, fees, penalties or fines, then such organization may apply to the tax authority with an application for the return of the excess amounts paid (collected). Refunds of overpaid amounts must be made no later than one month from the date the taxpayer submits the said application.

The provisions on the procedure for fulfilling obligations to pay taxes, fees, penalties and fines during the liquidation of an organization also apply when paying taxes in connection with the movement of goods across the customs border (clause 5 of Article 49 of the Tax Code of the Russian Federation).

19. Request for payment of taxes and fees

A requirement to pay tax is a written notice sent to the taxpayer about the unpaid amount of tax, as well as the obligation to pay the unpaid amount of tax and the corresponding penalties within the prescribed period (Article 69 of the Tax Code of the Russian Federation).

The tax payment request is sent to the taxpayer if he has arrears.

Let us remind you that arrears are the amount of tax or fee not paid within the period established by the legislation on taxes and fees.

The requirement to pay the tax is sent to the taxpayer regardless of whether he is held accountable for violating the legislation on taxes and fees.

These rules also apply to the requirement to pay a fee, as well as to the requirement to remit the tax to the withholding agent.

The demand for payment of tax must contain

information about the amount of tax debt,

the amount of penalties accrued at the time of sending the demand,

the deadline for paying taxes established by the legislation on taxes and fees,

deadline for fulfilling the requirement,

as well as measures to collect tax and ensure the fulfillment of the obligation to pay tax, which are applied in the event of failure to comply with the requirement by the taxpayer.

In all cases, the request must contain details of the basis for levying the tax, as well as a reference to the provisions of the tax law that establish the taxpayer's obligation to pay the tax.

The form of the demand is approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

The tax payment request is sent to the taxpayer by the tax authority at the place of his registration.

The requirement may be submitted to the head (legal or authorized representative) of the organization or individual (his legal or authorized representative) personally against a signature or in another way confirming the fact and date of receipt of this requirement.

In the event that the specified persons evade receiving the demand, the specified demand is sent by registered mail. The request is considered received after 6 days from the date of sending the registered letter.

The request must be sent to the taxpayer no later than 3 months after the tax payment deadline, unless otherwise provided by the Tax Code of the Russian Federation (Article 70 of the Tax Code of the Russian Federation).

The requirement to pay the tax and the corresponding penalties, issued to the taxpayer in accordance with the decision of the tax authority based on the results of the tax audit, must be sent to him within 10 days from the date of the relevant decision.

Changing the deadline for paying a tax, fee, penalty: general conditions for changing the deadline for paying a tax, fee, penalty; circumstances excluding a change in the tax payment deadline; bodies authorized to make decisions on changing the deadline for paying a tax or fee

A change in the deadline for payment of a tax and fee is a postponement of the established deadline for payment of a tax and fee to a later date.

The tax payment deadline may be changed in relation to the entire tax amount payable or part thereof, with interest accrued on the unpaid tax amount (hereinafter referred to as the amount of debt), unless otherwise provided by Chapter 9 of the Tax Code of the Russian Federation “Changes in the deadline for payment of taxes and fees, as well as penalties” . Changing the deadline for paying taxes and fees is carried out in the form of deferment, installment plan, tax credit, investment tax credit.

Changing the deadline for paying taxes and fees by decision of the authorities specified in Art. 63 of the Tax Code of the Russian Federation, can be carried out on the security of property in accordance with Art. 73 of the Tax Code of the Russian Federation or in the presence of a guarantee in accordance with Art. 74 of the Tax Code of the Russian Federation, unless otherwise provided by Chapter 9 of the Tax Code of the Russian Federation “Changes in the deadline for payment of taxes and fees, as well as penalties.”

The rules provided for in Chapter 9 of the Tax Code of the Russian Federation also apply to changing the deadline for paying taxes and fees to state extra-budgetary funds.

The tax payment deadline cannot be changed if in relation to the person applying for such a change (hereinafter referred to as the interested person):

• a criminal case has been initiated on the grounds of a crime related to violation of legislation on taxes and fees;

• proceedings are being carried out in a case of a tax offense or in a case of an administrative offense related to violation of the legislation on taxes and fees;

• there are sufficient grounds to believe that this person will take advantage of such a change to hide his funds or other property subject to taxation, or this person is going to leave the Russian Federation for permanent residence.

If, at the time of making a decision to change the tax payment deadline, the circumstances specified in paragraph 1 of Art. 62 of the Tax Code of the Russian Federation, a decision to change the deadline for tax payment cannot be made, and the decision made is subject to cancellation.

The interested person and the tax authority at the place of registration of this person are notified in writing of the cancellation of the decision made within three days. An interested person has the right to appeal such a decision in the manner established by the Tax Code of the Russian Federation.

The bodies whose competence includes making a decision on changing the deadline for paying taxes and fees are: 1) for federal taxes and fees - the Ministry of Finance of the Russian Federation (except for the cases provided for in subparagraphs 3-5 of paragraph 1, paragraph 2 of Article 63 and paragraph three paragraph 1 of Article 66 of the Tax Code of the Russian Federation);

2) for regional and local taxes and fees - respectively, the financial authorities of the constituent entity of the Russian Federation and the municipality (except for the cases provided for in subparagraphs 3 - 5 of paragraph 1 and paragraph 3 of Article 63);

3) for taxes and fees payable in connection with the movement of goods across the customs border of the Russian Federation - authorized customs authorities;

4) for state duty - authorized bodies exercising control over the payment of state duty;

5) for taxes and fees received by extra-budgetary funds - the bodies of the relevant extra-budgetary funds.

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Seventh - non-payment of taxes or failure to submit reports

Failure to comply with the requirements of government bodies to pay taxes, fines, penalties, contributions, or failure to submit reports entails serious consequences. A company with debts is not liquidated until all debts are repaid. If you do not comply with these requirements, then you will not be able to obtain certificates, which are recommended to be attached to the package of documents for the last stage of liquidation - approval of the liquidation balance sheet.

I do not recommend submitting documents to the registration authority without these certificates, in order to avoid refusal by the registration authority. Before submitting documents for the last stage - the liquidation balance sheet - it is important to obtain certificates from the tax authority about the absence of debt, as well as a certificate from the pension fund about the fulfillment of duties for personalized accounting.

To obtain the necessary certificates, you must pay all taxes, penalties, fines, and fees.

Submit all reports requested by government agencies.

PAYMENT OF TAX UPON LIQUIDATION OF AN ORGANIZATION

Any organization can be liquidated in the manner prescribed by civil law. The reasons for liquidation are varied. As a result of liquidation, a legal entity ceases to exist as a subject of law, losing its legal capacity. In accordance with paragraph 3 of Art. 49 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) “the legal capacity of a legal entity arises at the moment of its creation and terminates at the moment of making an entry about its exclusion from the Unified State Register of Legal Entities (USRLE).”
Thus, making an entry in the Unified State Register of Legal Entities about the exclusion of an organization from this register is the termination of the activities of the corresponding organization. Liquidation excludes succession of obligations of the liquidated organization. Clause 1 of Art. 60 of the Civil Code of the Russian Federation states: “Liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons.”

Liquidation may be a consequence of the bankruptcy of the organization. That is, the bankruptcy of an organization is one of the types of its liquidation. The recognition of a legal entity as bankrupt by the court entails its liquidation (Clause 1, Article 60 of the Civil Code of the Russian Federation). Only commercial organizations or those operating in the form of a consumer cooperative, charitable or other foundation can be declared bankrupt. The general conditions for the liquidation of an enterprise are established in the Civil Code of the Russian Federation.

Legal entities in liquidation are required to fulfill their tax obligations to the budget before liquidation. Otherwise, there will be no one to collect tax arrears and tax penalties from. Tax authorities should strictly monitor the liquidation procedure in order to prevent the use of liquidation as a means of tax evasion by unscrupulous taxpayers.

Article 49 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) establishes the principles of paying taxes during the liquidation of an organization: “The obligation to pay taxes and fees (fines, penalties) of the liquidated organization is fulfilled by the liquidation commission at the expense of the funds of the specified organization, including those received from its sale property."

Since the liquidation of an organization is carried out by a liquidator (liquidation commission), exercising all the powers of the executive bodies of a legal entity, the obligations to pay taxes must be fulfilled by this body. From the moment the liquidation commission is appointed, the powers to manage the affairs of the legal entity are transferred to it (Clause 3, Article 62 of the Civil Code of the Russian Federation).

The liquidation procedure changes the timing of tax payments. Tax debts are paid in accordance with the order of payments to creditors of the liquidated organization. Tax authorities are also creditors of the organization. The order of payments is established in Article 64 of the Civil Code of the Russian Federation. The law established a fourth priority for debt settlements with the budget. Moreover, the satisfaction of the obligations of each subsequent queue occurs only after the requirements of the previous queue are fully satisfied. This means that a situation may arise where taxes are not paid due to lack of funds, although the liquidation was carried out exactly in accordance with the law. Such situations are possible, and the law allows such developments.

Tax authorities in some cases prevent the completion of the liquidation procedure of an enterprise due to outstanding tax arrears due to lack of funds. These are illegal actions.

The legislator took into account this scenario by establishing subsidiary liability of the founders of a liquidated organization for tax debts in strictly defined cases. If the funds of a liquidated organization, including those received from the sale of its property, are not sufficient to fulfill in full the obligation to pay taxes and fees, due penalties and fines, the remaining debt must be repaid by the founders (participants) of the said organization within the limits and procedure established legislation of the Russian Federation (clause 2 of article 49 of the Tax Code of the Russian Federation).

The rules are aimed at protecting the interests of the budget. The implementation of this rule is possible only in cases specifically specified by law. The limits specified in Article 49 of the Tax Code of the Russian Federation are established by the civil legislation of the Russian Federation. To collect tax debts from the founders, you need to use the rules of the Civil Code of the Russian Federation, since the Tax Code of the Russian Federation does not establish the limits and procedure for implementing this rule. Thus, the rule on subsidiary liability of founders for tax debts of an organization during liquidation is valid in strictly limited cases by law. Article 49 of the Tax Code of the Russian Federation establishes the rule on subsidiary liability of the founders of an organization, but the principles for imposing such liability are specified in civil legislation.

According to paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of June 11, 1999 N 41/9 when applying paragraph 2 of Art. 49 of the Tax Code of the Russian Federation, it is necessary to take into account that the liability of the founders for the tax debts of the organization is possible only in the case when, in accordance with civil law, the founders of a liquidated legal entity bear subsidiary liability for its debts.

The limits and procedure for collecting tax arrears from the founders of an enterprise during liquidation are set out in the Civil Code of the Russian Federation and are specified in special laws. For example, the Civil Code of the Russian Federation and the Law on Limited Liability Companies establish: participants in a company are liable for its obligations within the limits of the contribution made, unless otherwise established by the constituent documents of the company.

According to the Law on Joint Stock Companies, shareholders bear risks only in the amount of paid-up shares. If the organization does not have funds, the founders cannot receive their contributions. However, in accordance with Article 96 of the Civil Code of the Russian Federation, “shareholders who have not fully paid for the shares bear joint liability for the obligations of the joint-stock company within the limits of the unpaid portion of the value of the shares they own.”

Clause 4 of Art. 10 of the Law on Insolvency (Bankruptcy) provides for the possibility of bringing the founders of an organization to subsidiary liability if the organization becomes bankrupt due to the fault of its participants.

Clause 2 of Art. 9 of the Insolvency (Bankruptcy) Law established that persons entrusted with the responsibility for liquidating an enterprise must file an application for declaring the liquidated organization bankrupt if, during the process of its liquidation, it is established that the organization’s property is insufficient to satisfy all requirements.

The consequences of failure to fulfill such an obligation are established in paragraph 2 of Art. 10 of the Bankruptcy Law - persons authorized to submit the specified application (they may also be the founders) must bear subsidiary liability for the obligations of the debtor.

The possibility of subsidiary liability of the founder, if at all, arises, then only upon liquidation of the enterprise. In other cases, it is not allowed to make demands on the founders to collect tax arrears.

The Tax Code of the Russian Federation establishes a special rule on subsidiary liability for tax debts: liquidation of an enterprise is a mandatory requirement for carrying out such a procedure. In other cases, it is prohibited to impose on the founders the obligation to pay tax arrears, of course, if they have not committed themselves to voluntarily fulfill the tax obligations of the organization. The limits of recovery and the procedure for exercising this power are established in civil legislation.

At the same time, participants in some legal entities, by force of law, are liable for the debts of these organizations either with all their property (general partnerships and limited partnerships - only general partners), or in a special order. A special procedure has been established, for example, for participants in companies with additional liability: “... participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company” (Clause 1, Article 95 Civil Code of the Russian Federation).

The principles of liability of general partners are established by paragraph 1 of Art. 75 of the Civil Code of the Russian Federation: “Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.” Obviously, based on Article 75 of the Civil Code of the Russian Federation, coupled with Article 49 of the Tax Code of the Russian Federation, the participants in a general partnership will be jointly and severally liable for their tax obligations.

After the liquidation of a general partnership, claims for unpaid taxes and fines can be brought in full by the tax authorities against the former participants of this partnership, both against all at the same time, and against an individual former partner, both in full and in part. Strict rules. The problem is that this organizational and legal form of an enterprise is used in isolated cases.

Entrepreneurs without legal entity are in a similar position. Even after the termination of business activity (this can be equated to the liquidation of an organization), tax obligations to the budget do not disappear. The citizen, although no longer engaged in business, remains a debtor, in particular, to the budget. A citizen is liable for his obligations with all the property belonging to him, with the exception of property on which, in accordance with the law, cannot be foreclosed on (Article 24 of the Civil Code of the Russian Federation).

The law, apparently, does not make a difference between a citizen-entrepreneur and a citizen who is not a private legal entity regarding property liability. The only indulgence is Art. 446 of the Civil Procedure Code of the Russian Federation establishes a list of a citizen’s property that cannot be foreclosed on. These are the limits of a citizen’s liability, including taxes, in the event of termination of activities as a private legal entity, which are specified in Article 49 of the Tax Code of the Russian Federation.

Owners of unitary enterprises based on the right of operational management can also be brought to subsidiary liability for the tax debts of the enterprise if the enterprise’s property is insufficient by virtue of clause 5 of Art. 115 of the Civil Code of the Russian Federation.

Members of a production cooperative bear subsidiary liability for the obligations of the cooperative in the amount and in the manner prescribed by the Law on Production Cooperatives and the charter of the cooperative (Clause 2 of Article 107 of the Civil Code of the Russian Federation).

The liability of members of consumer cooperatives is established in a slightly different amount: “Members of a consumer cooperative jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid portion of the additional contribution of each member of the cooperative.”

The owner of property transferred to the operational management of an institution may also be held liable for the institution’s tax debts: “The institution is liable for its obligations with the funds at its disposal. If they are insufficient, the owner of the relevant property bears subsidiary liability for his obligations” (Clause 2 of Article 120 of the Civil Code of the Russian Federation).

Members of an association (union) of commercial legal entities bear subsidiary liability for its obligations in the amount and manner provided for by the constituent documents of the association (clause 4 of article 121 of the Civil Code of the Russian Federation).

In the event of insolvency (bankruptcy) of a subsidiary due to the fault of the main company (partnership), the latter bears subsidiary liability for its debts (Article 105 of the Civil Code of the Russian Federation).

As stated, in accordance with the law, settlements of tax debts with the budget occur in the fourth place upon liquidation of an organization. This means that the liquidation procedure changes the timing of tax payments, since initially the company must pay off the creditors of the first three priority orders. Therefore, liquidation interferes with the right of tax authorities to forcibly collect tax arrears from an enterprise that is in the process of liquidation. All debts to the budget are satisfied in their (fourth) turn.

Tax debts are obligations like any other. The law does not give preference to the budget. Tax authorities, as persons representing the interests of the relevant creditor, must obey the general rules established by law to satisfy the stated requirements within the framework of the liquidation procedure. Tax authorities should not abuse their rights and thereby harm previous creditors.

The tax authorities must submit, within the period specified by law, the liquidator of the company for repayment of the company's debt to the budget. According to paragraph 2 of Art. 63 of the Civil Code of the Russian Federation, after the end of the period for submission of claims by creditors, the liquidator draws up an interim liquidation balance sheet containing information about the composition of the property of the legal entity being liquidated, the list of claims presented by creditors, as well as the results of their consideration.

The interim balance also includes the requirements of the tax authorities for debts to the budget. The interim liquidation balance sheet of the company contains a list of all claims submitted by creditors within the established two-month period.

Violation by the tax authority of the procedure for submitting claims for tax arrears to the liquidation commission is fraught with adverse consequences for the budget - the budget may not receive due tax payments.

To clarify tax claims, tax authorities have the right to conduct an extraordinary (repeated) on-site tax audit of a liquidated organization by virtue of Art. 87 Tax Code of the Russian Federation.

The liquidation commission has the right not to recognize the declared tax claims. In this case, the tax authorities have the right to apply to the court to the liquidator with a claim for recognition of the stated claims, otherwise the claims will not be included in the interim liquidation balance sheet.

According to paragraph 1 of Art. 64 of the Civil Code of the Russian Federation, if the liquidation commission refuses to satisfy the creditor’s claims or evades their consideration, the creditor has the right, before the liquidation balance sheet of the legal entity is approved, to file a claim against the liquidation commission. By a court decision, the creditor's claims may be satisfied at the expense of the remaining property of the liquidated legal entity.

The creditor's claims submitted after the expiration of the period established by the liquidation commission for their presentation are satisfied from the property of the liquidated legal entity remaining after the satisfaction of the creditors' claims submitted on time (clause 5 of Article 64 of the Civil Code of the Russian Federation).

According to paragraph 6 of Art. 64 of the Civil Code of the Russian Federation, claims of creditors that are not satisfied due to the insufficiency of the property of the legal entity being liquidated are declared extinguished. Claims of creditors that were not recognized by the liquidation commission are also considered extinguished if the creditor did not file a claim in court, as well as claims the satisfaction of which was denied to the creditor by a court decision.

Provisions of Art. 49 of the Tax Code of the Russian Federation and Art. 64 of the Civil Code of the Russian Federation do not provide for the possibility of tax authorities using a different order and priority in order to satisfy requirements for the payment of tax arrears.

The order of fulfillment of obligations to pay taxes and fees during the liquidation of an organization among settlements with other creditors of such an organization is determined by the civil legislation of the Russian Federation (clause 3 of Article 49 of the Tax Code of the Russian Federation).

If the liquidated organization has amounts of overpaid taxes (fees, penalties, fines), these amounts are subject to offset against the debt of the liquidated organization for taxes, fees (penalties, fines) by the tax authority in the manner established by the Tax Code of the Russian Federation.

If the liquidated organization does not have arrears in paying taxes (fees, penalties, fines), the amount of taxes and fees (fees, fines) overpaid by the organization is subject to refund. If the liquidated organization has amounts of excessively collected taxes (fees, penalties and fines), these amounts are also subject to return to the taxpayer in the prescribed manner.

Thus, tax authorities do not have the right to forcibly collect taxes from a liquidated organization, guided by the rules of Art. Art. 46 and 47 of the Tax Code of the Russian Federation; they are obliged to take into account the rules and principles established for the payment of taxes (fees, penalties, fines) by an organization undergoing liquidation.

Tax authorities also do not have the right to file a lawsuit against an organization to collect tax penalties. These requirements are also subject to inclusion in the number of obligations of the liquidated organization and are satisfied in accordance with the priority established by Article 64 of the Civil Code of the Russian Federation.

Compliance with the established rules is a guarantee of compliance with the legal rights of all creditors of the liquidated organization. At the same time, amendments should be made to the Tax Code of the Russian Federation that unambiguously and clearly prohibit tax authorities from collecting taxes and fines out of turn during the liquidation of an enterprise.

More information about liquidation of legal entities:

Relevance of liquidation of legal entities
Laws on liquidation of legal entities
Reasons for liquidation of a legal entity
Appeal to the court for liquidation of a legal entity
Liquidation of a legal entity that has ceased to exist
Liquidation of legal entities that have not registered the issue of shares
Record of liquidation of a legal entity
Liquidation due to activities without a license
Liquidation in case of bankruptcy
Liquidation of government bodies and institutions
Carrying out liquidation due to bankruptcy
Liquidation of individual entrepreneurs
Procedure for liquidation of a legal entity
Liquidation commission
Publication on liquidation of a legal entity
Dismissal of employees upon liquidation of an enterprise
Tax issues during liquidation of an enterprise
Notification of creditors of liquidation
Interim liquidation balance sheet
Settlements with creditors during liquidation
Liquidation balance
Order of payments upon liquidation
Inability to satisfy creditors' claims
Effect of insolvency law
Liquidation in case of insufficient property
Registration of liquidation of a legal entity
Liquidation balance sheet information
Cancellation of liquidation of a legal entity
Registration of cancellation of liquidation of a legal entity
Procedure for satisfying creditors' claims
Payment of tax upon liquidation of an organization

Eighth - fear of on-site tax audit

Many people assume that on-site inspections are assigned to every first company that enters into liquidation proceedings.

My experience shows that this is a wrong assumption. Of course, inspectors order such random checks, but under certain conditions. The most common conditions for its appointment may be:

The company was active and had high turnover.
There are arrears in paying taxes, fines, penalties, and reporting.
The tax returns submitted for the current and previous quarters are radically different (the amount of tax in the last quarter was higher, and in the current quarter it is significantly less).

If you have no problems with running a business, then you will absolutely easily pass the inspection, or it will not be assigned at all.

Tax audit is not an obstacle to liquidation

What to do if the tax audit has not been completed, but the time for drawing up the liquidation balance sheet has already approached? Should the liquidated organization wait for the results of the audit, or can liquidation be completed without regard to the fact of the audit?

According to Letter of the Federal Tax Service of Russia dated 08/07/2012 No. SA-4-7/13101, if an organization duly notified the tax authority about the start of the liquidation procedure, and the tax authority did not make any demands for the payment of taxes and fees, then the organization can continue the liquidation procedure on a universal basis. In particular, in accordance with paragraph 6 of Art. 63 of the Civil Code of the Russian Federation, after completing settlements with creditors, the liquidation commission draws up a liquidation balance sheet, which is approved by the founders (participants) of the legal entity.

VAS analyzed the following situation. The tax service drew up an act; at the time of submitting the documents for liquidation, it did not declare any requirements, however, already acting as a registrar, it refused to liquidate. The court considered these actions to be contrary to the law and substantiated its opinion as follows: at the time the applicant applied to the registering authority with an application according to the registration authority’s certificate, the company had no debt on mandatory payments, and the on-site tax audit report does not indicate additional amounts of mandatory payments were accrued to the applicant... The inspector’s argument about the debt the company had at the time of its application was rightfully declared insolvent, since the inspection of the company’s compliance with tax legislation was carried out by the inspectorate during the period of liquidation procedures and before the liquidator submitted an application to register the liquidation of the company, it had the right to send him a corresponding demand

(Determination of the Supreme Arbitration Court of the Russian Federation dated March 16, 2009 No. 2832/09).

Ninth - hope for exclusion from the Unified State Register of Legal Entities by decision of the registration authority

Some entrepreneurs mistakenly believe that if they “abandon” the company, then there is a chance that the registration authority itself will decide to exclude it from the Unified State Register of Legal Entities. Sometimes such a wrong decision leads to a neglected state of the company from which it is then very difficult to “get out”.

There are certain signs according to which reg. the authority may make the following decision:

there are no movements on the current account or in the cash register for 12 months.
reports are not submitted to government agencies for 12 months.

If you have had at least one movement on your bank account or submitted at least one declaration, even “zero”, within 12 months, your company is no longer taken into account as inactive.

Regulatory regulation

The last tax period for VAT for a reorganized company is the quarter in which it was excluded from the Unified State Register of Legal Entities (clause 3.1 of Article 55 of the Tax Code of the Russian Federation, clause 3.2 of Article 55 of the Tax Code of the Russian Federation).

The VAT return is submitted by:

the organization itself - until the moment of reorganization (Letter of the Federal Tax Service of the Russian Federation dated 03/09/2011 N KE-4-3 / [email protected] );
successor - after reorganization, until the 25th day of the month following the reporting period at the place of its registration (clause 4, clause 1, article 23 of the Tax Code of the Russian Federation, clause 1, clause 2, article 50 of the Tax Code of the Russian Federation, clause 1, article 80 Tax Code of the Russian Federation).

At the same time, the legal successor must submit a separate declaration for himself and for the reorganized organization (Letter of the Federal Tax Service of the Russian Federation dated November 21, 2018 N ED-4-15/22590, Letter of the Federal Tax Service of the Russian Federation dated March 29, 2017 N 15-3-03 / [email protected] ) .

The VAT return for the reorganized organization is submitted by the legal successor to the Federal Tax Service at its place of registration, in accordance with the provisions of clause 16.5 of Section II of the Procedure for filling out the tax return for value added tax, approved by Order of the Federal Tax Service of the Russian Federation dated October 29, 2014 N ММВ-7-3/ [email protected] (hereinafter referred to as the Procedure).

The title page states:

According to the details “at the location (registration)” - code “215” or “216”.
The TIN and KPP of the successor organization are indicated at the top.
The “taxpayer” detail indicates the name of the reorganized organization.
The details “TIN/KPP of the reorganized organization” indicate, respectively, the TIN and KPP that were assigned to the organization before the reorganization by the tax authority at its location.
In the details “Form of reorganization (liquidation) (code)” the code is indicated in accordance with Appendix No. 3 to the Procedure.

Section 1 states:

OKTMO code of the successor organization.

Tenth - disposal of documents after completion of the liquidation procedure

The final and important mistake that can be made even after the procedure is completed and you can calmly move on without looking back. If any questions arise from government authorities, if you do not have documents, you will find yourself in an unpleasant position. You will have to explain why all the documents were destroyed, and their absence may lead to problems or even fines.

By law, when the official liquidation has ended, you are obliged to transfer all your existing documents (constituent documents, statements) to the archive, where they must be stored for another three full years from the date of making an entry in the Unified State Register of Legal Entities about the termination of the company's activities.

Also, after liquidation, do not forget to draw up an act of destruction of the seal and, accordingly, destroy the seal itself.

Eleventh – “no company - no responsibility!”

Most entrepreneurs are inclined to believe that after an entry about the liquidation of the company has been made in the Unified State Register of Legal Entities, responsibility from the participants is automatically removed.

In fact, even after official liquidation, all participants bear subsidiary liability for another three years. This is worth remembering.

When the whole path has been completed, you can calmly begin new achievements and deeds, without thinking about the emergence of problems with the society that was recently liquidated.