Company Liquidation (Ликвидация компании)

          During the work the liquidating commission has to make the decision on employees of the liquidated enterprise.

         According to the Code about work, workers are warned about coming liquidation of the enterprise personally on receipt and not less than in two months prior to the actual dismissal.

          Besides, the liquidating commission is obliged:

                - to present to labor union not less than in three months prior to dismissal information on possible deprivation of work of employees;

                - no later than in two months to inform an employment service data on the forthcoming dismissal of each specific worker with the indication of its profession, specialty, qualification and the size of compensation, and also, in case of need, - its belongings to number of creditors of the first stage.

          For employees of the liquidated enterprise for their subsequent employment, but no more than for three months, remain an average salary taking into account the monthly severance pay and the continuous seniority.

          After this the liquidating commission reveals and notifies in writing creditors on liquidation of the enterprise. Creditors who have a debt to the enterprise, are notified in the same way in writing with the appendix of the written agreement on clearing of requirements and repayment of debt. If the creditor refuses the conclusion of the similar agreement, it is necessary to apply procedure of collecting receivables.

          In the literature studied by us it is shown that the most difficult in calculations with creditors is settlement with off-budget funds. Therefore right after making decision on liquidation of the enterprise the liquidating commission has to address to the relevant instances behind the solution of a question of further relationship with the enterprise to finish all calculations with off-budget funds within two months, requirements of creditors arrive so far. For granting in off-budget funds the following documents usually are required:

          - are necessary for fund of obligatory medical insurance: the reference from bank on existence of funds on the settlement account for date of making decision on elimination, quarterly reports in the last two years, copies of payment orders on transfers of payments in Fund for the last half a year;

          - the social insurance fund demands confirmation of bank on closing of the settlement account, and also the report in a year, last before elimination;

          - the fund of employment suggests to submit reports for the entire period of existence of the enterprise and the copy of all payment orders on transfers of payments in Fund;

          - it is necessary to present all accounting reports of the enterprise to the tax inspection for the entire period of its activity.

           Besides, the tax inspection can suggest to carry out an independent audit inspection for the purpose of confirmation of the reporting of the liquidated enterprise.

          The liquidating commission is the subsequent stage of work identification of debtors (debtors of the enterprise) and taking measures to receiving receivables. Usually act as debtors: consumers of production of the enterprise, budget, employees of the enterprise. The Civil Code of the Russian Federation doesn't define an order of collecting receivables at liquidation of the enterprise. Within collecting receivables official requirements about its repayment are imposed by the firms having receivables. In case of need claims go to courts. Thus the liquidating commission has no right to demand early repayment of receivables payment term on which didn't come yet.

           After the termination of term for providing requirements by creditors, i.e. in two months after the publication, the liquidating commission makes intermediate liquidating balance. The intermediate liquidating balance has to contain data on structure of property, the list of requirements imposed by creditors and result of their consideration. The intermediate liquidating balance is subject to the approval by the body which made the decision on elimination in coordination with the body which is carrying out the state registration of the enterprises.

           If on the course of liquidating process it becomes clear that the enterprise hasn't enough money for satisfaction of requirements of creditors, the liquidating commission carries out sale of property of the enterprise from the public auction in the order established for execution of judgments. If the enterprise is liquidated in a voluntary order, the issue of satisfaction of requirements of creditors in case of insufficiency of funds of the liquidated enterprise is resolved according to provisions of constituent documents of the enterprise (the charter, the foundation agreemtn).

          Payment of sums of money to creditors of the liquidated enterprise is made from the date of the statement of intermediate liquid balance as the sequence provided by Art. 64 of the Civil Code of the Russian Federation.

           The exception is made by creditors of the fifth turn by which payments are made after a month from the date of the statement of intermediate liquid balance.

          First of all requirements of citizens before which the liquidated enterprise bears responsibility for infliction of harm of life or to health, by capitalization of the corresponding time payments are met. In the second turn calculations for payment of severance pays and compensation with the persons working according to the employment contract, including under the contract and on payment of remunerations under author's contracts are made. In the third turn requirements of creditors for the obligations provided with pledge of property of the liquidated enterprise are met. In the fourth turn the debt on obligatory payments in the budget and in off-budget funds is repaid. In the fifth turn calculations with other creditors according to the law are made.

           At liquidation of the banks or other credit institutions raising funds of citizens first of all requirements of the citizens who are creditors of the banks or other credit institutions raising funds of citizens are met. It should be noted that requirements of each turn are met after full satisfaction of requirements of the previous turn. If it isn't enough property of the liquidated enterprise for full satisfaction of all requirements of creditors of the corresponding turn, the property is distributed between creditors in proportion to the sums of the requirements which are subject to satisfaction.

          In case of refusal the liquidating commission in satisfaction of requirements of the creditor or evasion from their consideration the creditor of the liquidating balance having the right to appeal to the statement to court with the claim to the liquidating commission. By a court decision requirements of the creditor can be met at the expense of the remained property of the liquidated enterprise.

          The requirements of the creditor declared after the expiration established by the liquidating commission for their granting are satisfied from property of the liquidated enterprise which remained after satisfaction of requirements of the creditors declared in time.

          The requirements of creditors which aren't recognized by the liquidating commission if the creditor didn't appeal with the claim to court, and also requirements which satisfaction by a judgment to the creditor it is refused are considered as the extinguished. Creditors of the state enterprises and establishments have the right in case of insufficiency of property at the state enterprise or money at establishment to appeal to court with the claim for satisfaction of the rest of requirements at the expense of the owner of property of this enterprise or establishment.

          Upon termination of all calculations with creditors the liquidating commission makes liquidating balance.

          The liquidating balance is approved by the body which made the decision on elimination in coordination with the body which is carrying out the state registration of the enterprises. The made liquidating balance goes to the statement to IFNS in the location of the liquidated enterprise. In IFNS on liquidating balance the corresponding mark that debts to the budget aren't present becomes, and Inspection issues the corresponding reference.

          After satisfaction of requirements of creditors the property of the enterprise is transferred it the founders and other participants having the real rights for this property or liability laws concerning this enterprise if other isn't provided by the law, other legal acts or constituent documents of the enterprise. Transfer of property is made with registration of the special act. Then the liquidating commission closes the bank account and destroys the press of the enterprise.

          Liquidation of the enterprise is considered complete, and the enterprise - stopped existence after record about it is entered in the Unified state register of the enterprises.

 

 

 

4. The damages upon liquidation of the company.

After repayment of debt the organization carries out drawing up final liquidating balance. That is drawing up liquidating balance is carried out upon termination of competitive production. Its purpose - to show losses which were suffered by owners and creditors of the enterprise. Opening balances of liquidating balance have to correspond to data of intermediate balance to provide an evident picture of productivity of competitive production. In it there shouldn't be receivables and payables. These sums need to be distributed or written off for the moment of drawing up liquidating balance completely.

Drawing up liquidating balance means use as data for the beginning of year of the data of the balance sheet received by the competitive managing director from inspection for the last reporting period for which the absent debtor presented accounting reports to tax authorities. As data on the end of the year when there is a drawing up liquidating balance, data on results of the measures for search and return of property of the absent debtor taken by the competitive managing director (further - the debtor) and expenses of the competitive managing director on bankruptcy procedure are used. According to the current legislation by drawing up liquidating balance the arisen losses and profit are the balancing article and don't bear any other (for example, tax) loadings.

Documents which should be submitted to the tax:

- the statement for the state registration in the form approved by the Resolution of the Government of the Russian Federation of June 19, 2002 No. 439 "About the statement of the forms and requirements to paperwork used at the state registration of legal entities, and also natural persons as individual entrepreneurs";

- liquidating balance;

- document on payment of the state tax.

          The state registration is carried out within five working days from the date of submission of documents in registering body (item 1 of Art. 8 of the Law of 08.08.2001 No. 129-FZ).

The organization is considered the liquidated ambassador of entering of record into the Unified state register of legal entities.

Pass powers on administration of firm to the liquidating commission, including on payment of taxes, with a penalty fee, penalties (item 1 of Art. 49 of the Tax Code of the Russian Federation). Only after carrying out all calculations with the budget the liquidated firm stops being the payer of taxes. It is told about it in subitem 4 of item 3 of Art. 44 of the Tax code. The sequence of satisfaction of requirements of creditors is established in item 1 of Art. 64 of the Civil code. Requirements need to be repaid in the following order:

- requirements of citizens for infliction of harm of life and to health are met;

- calculations for a salary with workers and payment of remunerations under author's contracts are repaid;

- the debt on obligatory payments to the budget is repaid;

- the debt to other creditors is repaid.

If the organization has a debt to depositors, it is necessary to extinguish it after calculations for the first two stages. Then extinguish debt on obligatory payments in the budget. Extinguish the obligations to depositors which aren't satisfied at the expense of means from sale of a subject of pledge in the fourth turn (item 2 of Art. 64 of the Civil Code of the Russian Federation).

           If the organization was liquidated until the end of calendar year, the last tax period is time from the beginning of this year before day of completion of elimination. If it is created after the beginning of calendar year, and liquidated until the end of this year, the period is term from the date of creation about day of elimination. At creation of firm in the day getting to time period from January 1 to December 31, and eliminations until the end of calendar year, the first tax period is the period from the date of creation about day of elimination (item 3 of Art. 55 of the Tax Code of the Russian Federation).

          The Ministry of Finance considers that the termination of an obligation for payment of income tax, advance payments, and also submission of tax declarations on the liquidated separate division comes in that reporting period in which the tax authority notified on removal from the accounting of the organization for the location of the liquidated division (The letter of the Ministry of Finance of December 11, 2006 No. 03-03-04/2/259).

  At the time of elimination there can be an overpayment on payments in the budget. In this case it should be reckoned on account of repayment of a shortage on other obligatory taxes, a penalty fee, penalties. There is a distribution of property in proportion to a shortage on other taxes (a penalty fee, penalties). Thus it is necessary to submit the application for offset to the tax inspection. If the firm has no debt, the overpayment is returned by the organizations on the settlement account. Thus return term is provided (no later than one month from the date of filing of application in the tax inspection). This order is established to item 4 of Art. 49 of the Tax code. According to item 7 of Art. 78 of the Tax code the statement for offset or for return of excessively paid tax can be submitted within three years from the date of payment of this sum.

In practice there are cases when the overpayment on taxes can't be returned in time. If the overpayment wasn't returned within one month from the date of obtaining by the tax inspection the statement for return, percent for each calendar day of violation of term of return (item 10 of Art. 78 of the Tax Code of the Russian Federation) are charged. If a cameral inspection is carried out because there was an overpayment, the term of return can increase. At calculation of percent the interest rate equal to a refinancing rate which worked in days of violation of term of return (item 10 of Art. 78 of the Tax Code of the Russian Federation) is accepted. The same norm is applied and to the liquidated firm.

Now it is necessary to find out, whether founders of firm on its debts answer. If the liquidated organization can't pay completely taxes (a penalty fee, penalties), the remained debt is repaid by founders in the order established by the legislation of the Russian Federation (item 2 of Art. 49 of the Tax Code of the Russian Federation). According to item 1 of Art. 87 and item 1 of Art. 96 of the Civil code participants (founders) of open company (joint-stock company) don't answer for obligations firm.

However subsidiary responsibility on payment of taxes if they are guilty of insolvency (bankruptcy) of firm (item 3 of Art. 3 of the Law No. 14-FZ, item 3 of Art. 3 of the Law No. 208-FZ) can be conferred on founders. At dissatisfaction of requirements of creditors they can be shown those who bears subsidiary responsibility. Those are founders (item 1 of Art. 399 of the Civil Code of the Russian Federation).

Judicial and arbitration practice. The standard of item 2 of Art. 49 of the Tax code concerns only founders who bear subsidiary liability for debts of firm. The Russian Federation No. 41/9 is told of 11.06.1999 about it in item 15 of Resolutions of Plenums of Russian Armed Forces and YOU.

By the way, if available for the liquidated society of money it isn't enough for satisfaction of requirements of creditors, the liquidating commission carries out sale of property of society from the public auction (item 3 of Art. 63 of the Civil Code of the Russian Federation).

Further we will consider, what taxes it is necessary to pay the liquidated organization at distribution of property between founders at liquidation of firm. Whether it is considered in this case such distribution realization and whether it is assessed with income tax, a uniform tax at the simplified system of the taxation and a value added tax?

We will begin with that income tax assesses revenue (income) from realization of goods (works, services), property rights. It is told about it in item 1 of Art. 249 of the Tax code. The same rule works and for a uniform tax at the simplified system of the taxation, and for the VAT (item 1 of Art. 346.15, subitem 1 of item 1 of Art. 146 of the Tax Code of the Russian Federation).

According to subitem 5 of item 3 of Art. 39 of the Tax code distribution of property between her founders within an initial contribution isn't considered realization. In the Letter of the Ministry of Finance of the Russian Federation of 19.06.2006 No. 03-03-04/1/525 officials came to a conclusion that distribution of property of the liquidated firm between its participants within an initial contribution doesn't admit realization.

Let's say that the property which cost is more than an initial contribution to authorized capital is transferred to participants. In this case excess between the transferred cost and initial cost in authorized capital is also not assessed with income tax. Here the liquidated organization doesn't receive any revenue. The same occurs and at the simplified system of the taxation (item 1 of Art. 346.15 of the Tax Code of the Russian Federation). The Ministry of Finance of the Russian Federation in Letters of 19.06.2006 No. 03-03-04/1/525 and of 20.01.2005 No. 03-05-02-04/6 came to the similar decision. As for expenses, according to item 16 of Art. 270 of the Tax code the cost of the transferred property isn't considered as a part of expenses for the profit taxation. In this case such transfer is gratuitous. For the simplified system of the taxation it is necessary to be guided by item 2 of Art. 346.16 of the Tax code.

If the property which cost is more than an initial contribution is transferred to the participant, it has a duty to accrue income tax. He has to calculate a tax on excess (subitem 4 of item 1 of Art. 251 of the Tax Code of the Russian Federation). Keep in mind that according to item 2 of Art. 277 of the Tax code the income of taxpayers shareholders (participants, shareholders) is defined on the moment of receiving this property proceeding from their market price minus the stock value which is actually paid by the corresponding taxpayers (a share, shares). The income in a type of excess of market value of the received property over actually paid cost is estimated in the person receiving the corresponding property and considered by it for the profit taxation as a part of extraordinary charges (The letter of the Ministry of Finance of the Russian Federation of 14.02.2007 No. 03-03-06/1/86).

However there is also an opinion that excess of cost of property which is transferred to the participant, is considered at it in the form of dividends. Thus the standard of item 1 of Art. 43 of the Tax code is applied. In this situation income tax has to be kept by the tax agent, that is the liquidated firm (item 2 of Art. 275 and subitem 1 of item 3 of Art. 284 of the Tax Code of the Russian Federation). It is estimated at the rate of 9 percent. It should be noted that also tax authorities hold the similar opinion. Their position is stated in the Letter of UFNS across Moscow of 11.11.2004 No. 21-09/72969.

In the Letter of 11.09.2006 the No. 03-05-01-05/193 Ministry of Finance noted that at liquidation of society participants - natural persons have an income in a type of the distributed, but not paid part of profit, and also the paid cost of property which is subject to the taxation a tax on the income of natural persons. Respectively, society admits the tax agent. Proceeding from it, it is obliged to estimate and hold at this taxpayer, and also to pay the sum of a tax on the income of natural persons (The letter of the Ministry of Finance of the Russian Federation of 09.10.2006 No. 03-05-01-04/291).

In practice cases when foreign firms and the companies can be participants to whom the property is distributed, often meet. If there is a distribution to the nonresident participant who has no permanent mission in Russia, the liquidated firm it is necessary to accrue income tax at the rate of 20 percent. It is necessary to make it from the sum which exceeds a contribution to authorized capital (subitem 2 of item 1 of Art. 309 and subitem 1 of item 2 of Art. 43 of the Tax Code of the Russian Federation). Here the liquidated firm acts as the tax agent. In case of existence of the agreement in force on avoidance of the double taxation between the Russian Federation and the foreign state, which resident the foreign participant is, the taxation is carried out according to provisions of this Agreement (The letter of the Ministry of Finance of the Russian Federation of 22.06.2006 No. 03-08-05).

Pay attention that according to item 2 of Art. 58 of the Law of 08.02.1998 No. 14-FZ "About limited liability companies" if it isn't enough property which is available for limited liability company for payment to the distributed part of profit, the property of society is distributed in proportion to shares of participants in the authorized capital of society (The letter of the Ministry of Finance of the Russian Federation of 09.10.2006 No. 03-05-01-04/291 and of 11.09.2006 No. 03-05-01-05/193).

Now we will resolve an issue with a value added tax. If the cost of the transferred property exceeds an initial contribution, transfer of property over a contribution admits realization and the VAT is assessed. For this purpose it is necessary to be guided by subitem 5 of item 3 of Art. 39 and subitem 1 of item 1 of Art. 146 of the Tax code. If securities or money are distributed, the object of the taxation on the VAT doesn't arise (subitem 12 of item 2 of Art. 149 of the Tax Code of the Russian Federation, subitem 1 of item 3 of Art. 39 of the Tax Code of the Russian Federation). Also similar explanations are made by officials (The letter of the Ministry of Finance of the Russian Federation of 20.01.2005 No. 03-05-02-04/6).

In the Letter of the Ministry of Finance of the Russian Federation of 11.04.2000 No. 04-01-10 is said that during the period from the moment of making decision on elimination to the statement of liquidating balance it is necessary to pay off with the budget. It belongs and to payment of the taxes accrued during exit tax inspection which is carried out as a result of elimination. Follows from pct 4, 5 of Art. 63 of the Civil code that the debt on taxes, penalties, a penalty fee needs to be repaid in the sequence specified by item 1 of Art. 64 of the Civil code.