Is the founder of an LLC liable with his own property? We dispel the myths that the founders are not responsible for the debts of the LLC with their property. The form of the enterprise is responsible for debts with property.

The responsibility of the founder for the activities of an LLC is a pressing issue of interest to businessmen who plan to open a limited liability company. Today there are a lot of organizational and legal forms, including a limited liability company, which have both pros and cons. A decision on which form to choose can only be made after studying the legal requirements and analyzing the positive and negative aspects of each of them.

It is worth noting that LLC is a form of business organization, the conditions for creation and activities of which attract mainly representatives of small and medium-sized businesses.

Despite the fact that founding a company, compared to an individual entrepreneur, requires more time, effort and finance, this organizational and legal form has a number of advantages, which will be discussed in the presented material.

The article contains information about what an LLC is, what advantages and disadvantages it has. In addition, you will be able to find out who is responsible for the debts of the LLC and whether the founder of the LLC is liable to third parties with his property.

What is an LLC, its advantages

A limited liability company can be confidently classified as an optimally profitable form of business organization due to a number of reasons.

The advantages of an LLC include:

1. the ability to start an enterprise either alone or together with other business representatives. The maximum number of founders should be no more than 50 people;
2. all important decisions concerning the activities of the enterprise, as well as the introduction of new members and the exit of existing ones, are made at the general meeting by voting;
3. the amount of income expressed in the form of dividends depends on the share of the founder. The larger the amount invested by the participant when founding the company, the more net profit he will receive.

Important! The most significant advantage for the founders of the company is the fact that the founder of the LLC is liable to creditors for failure to fulfill the obligations of the company only within the limits of his share, that is, nothing threatens his personal property. Compliance with this norm is guaranteed by the Federal Law “On Limited Liability Companies”.

The size of the portion that may be subject to debt collection is, as a rule, prescribed in the charter documents of the company. In addition to this information, the charter contains other information relating to the activities of the enterprise. In accordance with the requirements of the law, the company, in turn, is not responsible for the debts of its participants either to creditors or to other persons whose property claims are subject to satisfaction on the basis of a court decision.

Bringing a company to liability associated with debt collection may threaten its founders with:

• loss of a share in the authorized capital of the enterprise;
• loss of property belonging to the company.

Additional Information! If the company's property and assets are not enough to pay off the debt, the creditor may try to recover the rest of the debt from its founders through the use of subsidiary liability mechanisms. Read on to find out how to do this.

Features of subsidiary liability of company participants

The principle of subsidiary liability is that the persons responsible for the activities of the enterprise bear financial responsibility to the partners in the event of failure to fulfill the obligations established by the contract. Thus, this rule allows you to collect debt from the head of the company and its participants.

Creditors have been able to collect the debt in full since the Federal Law “On Bankruptcy” came into force in 2009. Thanks to these changes in legislation, the following can be brought to financial responsibility for the company’s debts:

1. LLC directors;
2. chief accountant;
3. founders of the society;
4. managers.

Before appropriate amendments were made to the regulatory framework regulating the activities of business companies, only the person who was listed as the director or founder of the company at the time of the commencement of the bankruptcy procedure could act as a defendant in a claim for debt collection. This provision provided an opportunity for attackers to evade responsibility by replacing management personnel. Today, both current and former representatives of management or founders who are in any way related to the functioning of the company and business operations, the implementation of which entailed the formation of debt, can be held liable for the debts of an enterprise.

Note! Bringing the director of an LLC or its founders to legal liability is not possible in all cases, but only on the condition that it was the actions and decisions of these persons that caused the unprofitability of the company, which justifies the formation of debt. Accordingly, before filing a claim in court to recover a debt, the creditor must prepare evidence indicating that the actions of the defendant, who can be either a director or a member of the LLC, led to the insolvency of the company.

Additional Information! According to the requirements of procedural legislation, the statement of claim must be drawn up in accordance with the law, so it is better to entrust the preparation of the claim to a lawyer specializing in this field. In addition to the application, the specialist will help to collect and correctly prepare materials confirming the defendant’s guilt, which is of key importance in cases of this kind.

Another condition, the presence of which allows the use of the rules of subsidiary liability, is the fact of insolvency of the company, as a result of which the LLC cannot be liable for its obligations to third parties.

Evidence of a company's bankruptcy can be:

1. a decision of a government body, for example, an Arbitration Court, vested with the powers necessary to make it;
2. recognition of the debtor.

It is worth noting that if there is a court decision, it is much easier to bring the guilty person to justice. The main task of the plaintiff in this case is to prove the existence of a cause-and-effect relationship between the actions of the defendant and the resulting consequences in the form of bankruptcy of the company.

In addition to financial liability, the founders or director of an LLC may be held administratively liable. Administrative punishment is imposed in accordance with the norms of the Code of Administrative Offenses in the following cases:

• violation of legal norms, which is associated with the bankruptcy of the enterprise;
• appointing dummies to leadership positions or introducing illegal amendments to the company’s charter in order to avoid liability;
• organization of fictitious bankruptcy;
• committing illegal acts or inaction during bankruptcy.

According to the law, bringing an individual to financial responsibility is quite possible, however, as practice shows, implementing this procedure in life is quite problematic.

When choosing a legal form (individual entrepreneur or LLC), the main argument in favor of registering a company is often the limited liability of a legal entity. In this, Russia differs from other countries where a company is created for the sake of partnership, and not because of avoiding financial risks. About 70% of Russian commercial organizations are created by a single founder, who, in most cases, manages the business himself.

Many companies do not really function, not even earning enough for the director’s salary and not differing in profitability from a freelancer who provides services in his free time from hired work. However, legal entities in Russia are registered as often as individual entrepreneurs.

If you want to find out in detail how an organization differs from an individual entrepreneur, we advise you to read the article “”, and here we will try to dispel the myth that registering a company is a sure way to avoid losses in business.

Liability of a legal entity

First, let’s find out where the confidence comes from that it is financially safe to conduct business in the form of an LLC? Article 56 of the Civil Code of the Russian Federation states that the founder (participant) is not liable for the obligations of the organization, and the organization is not liable for its debts. That is why, to the question: “What responsibility does the founder of an LLC bear?” the majority answers - only within the limits of the share in the authorized capital.

Indeed, if the company is solvent and pays on time to the state, employees and partners, then the owner cannot be attracted to pay the company’s bills. The created organization acts in civil circulation as an independent entity and is itself responsible for its own obligations. As a result, a false impression is created of a complete lack of responsibility of the LLC owner to creditors and the budget.

However, the limited liability of a company is valid only as long as the legal entity itself exists. But if an LLC is declared bankrupt, then the participants may be subject to additional or subsidiary liability. True, it is necessary to prove that it was the actions of the participants that led to the financial disaster of the company, but creditors who want to get their money back will make every effort to do this.

Article 3 of Law No. 14-FZ dated 02/08/1998: “In the event of insolvency (bankruptcy) of a company due to the fault of its participants, these persons, in the event of insufficient property of the company, may be assigned subsidiary liability for its obligations.”

Subsidiary liability is not limited to the size of the authorized capital, but is equal to the amount of debt to creditors. That is, if a bankrupt company owes a million, then it will be recovered from the founder of the LLC in full, despite the fact that he contributed only 10,000 rubles to the authorized capital.

Thus, the concept of limited liability within the authorized capital is relevant only to the organization. And the participant can be held to unlimited subsidiary liability, which in a financial sense makes him equal to an individual entrepreneur.

Manager and founder rolled into one

The subsidiary liability of the founder and director of an LLC for the obligations of a legal entity has its own characteristics. In a situation where an organization is managed by a hired general director, some share of the financial risks passes to him. According to Article 44 of the Law “On LLC”, the manager is responsible to society for losses caused by his guilty actions or inaction.

Liability for debts arises if there are such signs of guilty actions or inaction:

• making a transaction to the detriment of the interests of the enterprise he manages, based on personal interest;
• concealment of information about the details of the transaction or failure to obtain the approval of participants when such a need exists;
• failure to take measures to obtain information relevant to the transaction (for example, information about the contractor is not verified or clarified if the nature of the work requires it);
• making decisions about a transaction without taking into account information known to him;
• forgery, loss, theft of company documents, etc.

In such situations, the participant has the right to file a claim against the manager for compensation for damage caused. If the director proves that in the process of work he was limited by the orders or requirements of the owner, as a result of which the business became unprofitable, then responsibility will be removed from him.

But what if the owner is the manager of the company? In this case, it will not be possible to refer to an unscrupulous hired manager. The presence of outstanding debts obliges the sole executive body to take all measures to repay them, even if the owner is the only one, and at first glance, does not infringe on anyone’s interests with his actions.

Indicative in this sense is the ruling of the Arbitration Court of the Jewish Autonomous Region dated July 22, 2014 in case No. A16-1209/2013, in which 4.5 million rubles were recovered from the founding director. Having a company that had been involved in heat and water supply for many years, he entered a new company with the same name in a competition for the right to lease utility infrastructure facilities. As a result, the previous legal entity was left without the ability to provide services, and therefore did not repay the amount of the previously received loan. The court recognized that the insolvency was caused by the actions of the owner and ordered the loan to be repaid from personal funds.

Tax debts

The Federal Tax Service of Russia is proud of the high collection of taxes to the treasury. We will not now discuss the legality of the tax authorities’ methods of work; we will simply admit that they are not to be trifled with. It is possible to agree with private creditors on writing off part of the debt or restructuring payments, but with a critical budget the amount of debt will already be over 300,000 rubles.

The liability of the founder for the debts of a legal entity to the state is also prescribed by law.

Article 49 of the Tax Code of the Russian Federation: “If the funds of the liquidated organization are not enough to fulfill in full the obligation to pay taxes and fees, penalties and fines, the remaining debt must be repaid by the participants of the said organization.”

If the amount of tax debt exceeds 300,000 rubles, and the repayment period is more than 3 months, then the organization is at risk. It is necessary to take all measures to pay off the debt or declare the LLC bankrupt, otherwise the tax inspectorate will do this, but with the requirement that the manager and/or founders be found guilty.

Attempts to withdraw assets from the organization in order not to pay arrears on taxes will also not lead to anything good. For example, in case No. A07-7955/2009, the Arbitration Court of the Republic of Bashkortostan held the founders to subsidiary liability under the following circumstances.

The company, having a tax debt in the amount of 675 thousand rubles, transferred all its assets to another organization created by the same persons. The participants believed that if there were no funds to pay the tax and the company was declared bankrupt, the obligations of the legal entity would cease. However, the tax inspectorate, having filed a lawsuit, proved the guilt of the company's owners in creating arrears and collected the debt from their personal funds.

Of course, it is more difficult and longer to attract the founder of an LLC for the debts of his company than an individual entrepreneur, because the bankruptcy procedure is quite lengthy. However, since 2015, tax inspectors have had another collection tool - as part of the initiation of a criminal case under Article 199 of the Criminal Code of the Russian Federation.

Thus, in the ruling of the Supreme Court of the Russian Federation dated January 27, 2015 No. 81-KG14-19, the court found the manager and sole owner responsible for failure to pay VAT on a large scale and confirmed the legality of collecting damages from an individual to the state in the amount of the unpaid amount of tax. This decision, in fact, became a judicial precedent, after which all similar cases are considered easier and faster. The founder, in addition to the obligation to repay the debt itself, also receives a criminal record.

Prosecution procedure

At what point does the founder become responsible for the activities of the LLC? As we said above, this is only possible in the process of bankruptcy of a legal entity. If an organization simply ceases to exist, having honestly paid all creditors in the process, then there can be no claims against the owner.

Protecting the interests of the budget and other creditors is the law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, the provisions of which are also valid in 2019. It details the procedure for carrying out bankruptcy and bringing to responsibility the managers and owners of the company, as well as persons controlling the debtor.

The latter refers to persons who, although not formally owners, had the opportunity to instruct the manager or participants of the company to act in a certain way. For example, one of the most impressive amounts in the case of bringing to subsidiary liability (6.4 billion rubles) was recovered from the controlling debtor of a person who was not part of the company and did not formally manage it (Resolution of the 17th Arbitration Court of Appeal in the case No. A60-1260/2009).

The manager must submit an application to recognize the legal entity as a debtor, but if he does not do this, then employees, contractors, and tax authorities have the right to begin bankruptcy proceedings. In this case, the party filing the claim appoints the selected arbitration manager, and this is of particular importance in attracting the owner to the obligations of the LLC.

In addition, in order to increase the bankruptcy estate, the plaintiff has the right to challenge transactions made within a year before the application for declaring the debtor bankrupt was accepted. In cases where the transaction was completed at prices below market prices, the period for challenging is increased to three years.

During the insolvency process, the director, business owner, and beneficiary are involved in the proceedings. If the court recognizes the connection between the actions of these persons and insolvency, then a penalty in the amount of the plaintiff’s claims is imposed on personal property.

What conclusions can be drawn from all that has been said:

1. The liability of a participant is not limited to the size of the share in the authorized capital, but can be unlimited and repaid from personal property. There is little point in establishing an LLC just to avoid financial risks.
2. If the company is run by a hired manager, provide for an internal reporting procedure that allows you to have a complete picture of the state of affairs in the business.
3. Accounting statements must be under strict control; loss or distortion of documents is a particular risk factor indicating deliberate bankruptcy.
4. Creditors have the right to demand collection of debts from the owner himself if the legal entity is in the process of bankruptcy and is not able to meet its obligations.
5. It is more difficult to attract the owner of an enterprise to pay business debts than an individual entrepreneur, but since 2009 the number of such cases has been in the thousands.
6. Creditors must prove the connection between the financial insolvency of the company and the actions/inactions of the participant, but in some situations there is a presumption of his guilt, i.e. no proof required.
7. Withdrawal of assets from a company on the eve of bankruptcy is a significant risk of criminal prosecution.
8. It is better to initiate the bankruptcy procedure yourself, but this should only be done with the involvement of highly specialized lawyers with positive experience in similar cases.

When the need arises to choose a legal form for their business, many choose a limited liability company. This is due to the fact that a legal entity has limited liability for the activities of its company.

Situation in Russia

This makes Russia very different from most countries in the modern world. After all, only in Russia an organization is created for the most part to avoid possible financial risks, and not for partnership. Approximately 70% of domestic commercial organizations are created by one single founder, and often he is the head of his business. What does the liability of LLC founders mean? Let's find out in this article.

Most organizations actually function without having the income to even pay the salary of their director. Their income does not exceed the income of a freelancer who provides services in his free time. However, in terms of frequency of registration, legal entities are on the same level as individual entrepreneurs.

Liability of a legal entity

First, it’s worth finding out what is the source of information that carrying out the activities of an entrepreneur using the LLC form is financially safer. From Article No. 56 of the Civil Code of the Russian Federation it follows that the founder should not be liable for the obligations of his company, and the enterprise itself is not obliged to be responsible for the debts of the founder itself. That is why, when the question arises about the liability of the founders of an LLC, many confidently assert that the founder should bear responsibility only in an amount proportional to his share in the authorized capital of the company.

In fact, everything looks something like this. If the company is solvent, can pay taxes on time, and also pay its obligations to employees and partners, then the law does not provide for the possibility of involving the founder in paying the company’s own bills. That is, a registered company is a completely independent entity in civil circulation and, accordingly, bears responsibility for its obligations. It is because of this that one may get the wrong impression that the owner of the enterprise bears absolutely no responsibility to his creditors or the state budget. But there is a certain liability of the director and founder of the LLC for debts. Let's figure it out further.

Reservation in law

An important point here is the clause in the law that the liability of the company is limited only as long as the legal entity exists. But if an enterprise is declared bankrupt, its participants may be held liable, for example, subsidiary or additional. What does the subsidiary liability of the founder for the debts of the LLC provide? More on this below.

However, first you will have to prove that the founders themselves, as well as their actions, are to blame for the bankruptcy of the organization. But we all understand that creditors of a bankrupt organization who want to get their own money back will try to make every effort to prove this.

Thus, the possibility of imposing liability on the founders of a subsidiary-type LLC is possible in the case when the participants themselves are guilty of bankruptcy, and the company’s own property is not enough to repay debts. This possibility is enshrined in the third article of Federal Law No. 14 of February 8, 1998.

Vicarious liability

Since 2017, the liability of the founders of an LLC of a subsidiary type is not limited to the participant’s share in the authorized capital, but is equal to the full amount of debt to credit institutions. It turns out that if an organization declared bankrupt owes three million rubles, then this is the amount that will be recovered from the founder of the enterprise, even though this founder contributed only ten thousand rubles to the authorized capital.

In fact, the concept of limiting the liability of the founders of an LLC in an amount proportional to the share in the authorized capital applies only to the enterprise itself. And the founder himself may be held to unlimited subsidiary liability. This feature financially equates him to an individual entrepreneur.

Manager and founder rolled into one

The liability of the director and founder of an LLC of a subsidiary nature for obligations incurred by a legal entity has a number of its own characteristics.

If the general director of an organization is an employee, then a certain part of the financial risks is assigned to him. That is, the head of the enterprise is liable to the LLC for those losses that resulted from the actions or inaction of the head. This provision is fixed in Article No. 44 of the Law on Limited Liability Companies.

Signs of inaction of a hired director

Such liability of the hired director of an enterprise arises if signs of his inaction or guilty action are established, such as:

• Concluding a transaction in one’s own interests, without taking into account its damage to the enterprise itself.
• Failure to obtain the consent of the founders to complete the transaction, if such consent is required. As well as silence about significant details of the transaction.
• Failure to take measures necessary to obtain important information that is significant for the implementation of the transaction. An example would be failure to find out whether a contractor has a license if its activities require appropriate licensing.
• Concluding a transaction without taking into account information that is known and significant.
• Actions related to the loss, theft or forgery of organizational documents.

Filing a claim

If such situations arise, each of the founders has every right to file a claim against the director demanding compensation for the damage received. However, the director will be relieved of liability if he can prove that his actions complied with or were limited by the requirements and orders of the owner. That is, then the founders of the LLC themselves bear responsibility.

But what to do in a situation where the founder himself is directly involved in the management of the organization? Indeed, in such a situation it will not be possible to refer to the incompetent actions of the hired employee. If such an organization has unpaid debts, the founder, represented by the director, will be obliged to take possible measures to pay off these debts. Even if he is the only founder and, it would seem, no one’s interests are affected.

Then the liability of the director and founder of the LLC will take place as one person.

Tax debts

The Federal Tax Service of Russia is famous for the fact that tax payment in the country is at a high level. In this article, it will be superfluous to discuss the legality of the methods used by tax representatives, but it is worth recognizing that jokes with this structure do not end well. If in the case of a private creditor it seems possible to take action and come to an agreement on restructuring the debt or on its partial write-off, then with a debt of about 300 thousand rubles to the budget the situation takes a critical turn.

The responsibility of the founder for the activities of the LLC to the tax service is also established by law. Thus, Article No. 49 of the Tax Code states that in the event that, during the liquidation of an enterprise, its funds are not enough to pay off tax debts in full, the balance of this debt passes to the founders of this organization.

When the amount of debt to the tax authorities reaches 300 thousand rubles, and the repayment period is already more than three months, then the enterprise falls into the risk zone. It is necessary to urgently take measures to repay the debt, or declare the organization bankrupt. Otherwise, the organization will be declared bankrupt at the request of the tax authorities, and this already threatens to transfer responsibility to the director and founder of the LLC for debts.

At the same time, all attempts to withdraw assets from the debtor organization in order to avoid paying tax arrears are unlikely to lead to anything good. For example, the arbitration court in the Republic of Bashkortostan held the founders of an organization liable for subsidiary liability in a similar situation.

An enterprise that had a tax debt in the amount of 675 thousand rubles transferred its own assets to a new enterprise, which was registered by the same participants. They believed that the enterprise's liability would cease if it was declared bankrupt and it did not have the funds to repay the debt. But representatives of the tax inspectorate were able to prove the guilt of the company’s founders in causing arrears. And this debt was collected from the founders in court from their personal funds. This is what the subsidiary liability of the founder and director of an LLC means.

Undoubtedly, it is faster and easier for an individual entrepreneur to be held accountable for debts than the founders of an organization, since declaring an LLC bankrupt is a rather lengthy procedure. But after amendments to the legislation in 2015, tax inspectors received an alternative tool for collecting payments - now they can be collected within the framework of judicial proceedings opened under Article No. 199 of the Criminal Code of the Russian Federation.

Prosecution procedure

Let's figure out at what point the liability of the founders of an LLC arises since 2017 for their activities. As already stated, such liability can arise only in the process of declaring a legal entity bankrupt. In the event that there is a liquidation of an organization that has previously paid off its debts to all existing creditors, then, naturally, claims cannot be brought against the founder.

The interests of the budget and other creditors are protected by bankruptcy law No. 127. It regulates in detail the bankruptcy procedure, and also has provisions establishing the procedure for bringing the founders of the organization and other persons under whose control the debtor is held accountable.

The latter include those persons who are not actually the founders of the company, but are endowed with the ability to control the manager and founders in the area of ​​certain actions of the enterprise.

The obligation to submit an application that the organization should be recognized as a debtor lies with the head of the legal entity. However, if he does not take advantage of this opportunity, then the employees themselves, the company’s counterparties, and the tax authorities themselves can begin the procedure for declaring the organization bankrupt. In this case, the party that files the claim will have to identify an arbitration manager, which, in turn, is of particular importance when involving the founder in the obligations incurred by the LLC.

Among other things, a person filing a claim to declare a debtor bankrupt has the right to challenge those transactions that the organization made during the year before the claim was accepted.

Directors, business founders, and beneficiaries may be involved in court proceedings during which the insolvency of a legal entity is proven. If during the proceedings the court proves that all these persons are connected with the insolvency that has arisen, then the amounts required by the plaintiff will be recovered from the personal property of all these persons.

conclusions

From all of the above, the following conclusions can be drawn:

• In accordance with the law, the liability of the founder is not limited to the size of his share in the authorized capital of the LLC. It is not limited and can be repaid by a court decision from personal funds and property.
• If the manager is a hired person, then it would not be amiss to provide a method of reporting that will allow him to know about the nuances of doing business and will reflect the full picture of affairs in the enterprise.

• All documentation and accounting reports must be strictly controlled. Loss or distortion in documentation puts you at risk.
• What else does the founders’ liability for LLC debts mean in 2017? Creditors of a legal entity have the legislative right to demand repayment of debts directly from the owner himself, but only if the organization cannot be responsible for its obligations independently and is in the process of being declared bankrupt.
• An attempt to withdraw assets may result in criminal prosecution.
• The bankruptcy procedure must be initiated independently; the best option would be to involve specialists in this profile.

We looked at what responsibility the founder of an LLC bears.

Many people planning to open their own business prefer to open an LLC, since by choosing this organizational form they can avoid liability for debts, since they risk exclusively the funds invested in capital when opening a business. In fact, the liability of the LLC founders for debts can be subsidiary, criminal or administrative, as it depends on numerous factors. Therefore, if citizens wish to carry out fraudulent activities with the help of such an organization, then in any case they will face serious negative consequences.

LLC concept

This company is represented by a limited liability company. This form is chosen for various reasons:

• ease of opening;
• the ability to attract other founders, which allows you to found a truly large and interesting business by combining several capitals;
• risks are shared between all founders;
• there is an opportunity to participate in the authorized capital of other enterprises.

But before opening such an organization, you should study what the liability of the LLC founders is for debts. This is especially true for a participant who prefers to occupy the position of general director, since in this case he risks not only the funds invested in the company, but also his personal property.

Definition of founders

When opening an LLC, the founders are certainly identified, who are entrepreneurs who invest their funds in the authorized capital of the future company. Such a company may have only one founder, but it has the opportunity to attract other participants.

A special feature of an LLC, unlike a JSC, is the absence of the need to issue shares to attract participants. The process of conducting activities in such a company is regulated by the provisions of Federal Law No. 14. Based on this regulatory act, the founder is a citizen:

• approving the charter of the future company;
• contributing his own funds to the authorized capital of the enterprise;
• determining who will be on the management team of the company;
• identifying controllers;
• having the right to vote in making various decisions related to the work of the organization.

The founders can be both individuals and different companies. Not only Russian persons, but also foreigners can start an enterprise. Restrictions apply exclusively to country officials, deputies and military personnel. The liability of the LLC founders for debts is the same for all participants. An exception is the situation when one of the founders additionally acts as an employee of the company, and therefore is its general director.

Liability within the authorized capital

Based on the provisions of Federal Law No. 14, when opening such a company, the founders risk exclusively with the funds that they invest in the authorized capital when organizing the business. The funds will be lost in the event of bankruptcy or liquidation of the company, when it is necessary to pay off the company’s debts, so money invested in the authorized capital is used for this.

Often, tax debts or debts to other counterparties significantly exceed the amount of the authorized capital. Under such conditions, participants have the right to refuse to repay the debt by using personal savings or property. Therefore, in fact, shareholders of the enterprise have no risk of losing money, real estate or other property.

Such restrictions on the liability of LLC founders for debts are confirmed by numerous articles of the Civil Code. Based on Art. 56 of the Civil Code, it is the company, and not its owners, that is responsible for its obligations, therefore the company acts as a separate economic entity.

What are the responsibilities of the CEO?

Experienced professionals may be hired by business owners to fill this position, but often this position is occupied by one of the founders of the enterprise. It is the person holding this position who is responsible for the activities of the enterprise. Therefore, usually the founders of companies prefer to attract outsiders to this position, who then independently must solve problems associated with the numerous debts of the company.

How is the founder of an LLC responsible for debts if he does not hold the post of general director? In this case, he only loses his investment in the company. If the participant is also the director of the enterprise, then he will have to answer even with personal property to pay off debts. Therefore, a leader and founder in one person is quite rare.

When can participants risk their property?

The standard terms of the law apply exclusively to situations where debts are incurred as a result of the legitimate conduct of business. If the company uses various fraudulent schemes during its work or the organization is deliberately brought to bankruptcy, then the participants may be held accountable. Can a founder pay the debt of his LLC? If fraud is detected, the personal property of the participants may be used to pay off the debt.

If it is established that the company was deliberately brought to bankruptcy, the amount of debt may be recovered from the director and owners of the enterprise, as specified in Federal Law No. 127. Under such conditions, the participants are held vicariously liable.

In order to hold the owners accountable and pay off debts on taxes or other payments from their personal funds, the guilt of the owners must be proven. To do this, the following conditions must be met:

• the insolvency of the organization is confirmed in an official way, for example, the company is declared bankrupt by making an appropriate decision by the arbitration court;
• During the court hearing, a connection is established between the actions of the company participants and the bankruptcy of the company.

The founder of the LLC is held liable for the company's debts in a situation where, when studying the company, it turns out that there are no mandatory accounting documents. The presence of false facts in the documentation can also lead to punishment for direct participants of the company.

The concept of subsidiary liability

According to the theory, the general director is not responsible for the company’s obligations, so he copes with his job responsibilities on the basis of drawing up an employment contract. But most often in practice, it is his actions that lead to the bankruptcy of a company that cannot satisfy the demands of creditors.

The subsidiary liability of the director and founder of an LLC for debts is represented by the financial responsibility of citizens to the organization’s creditors. It arises exclusively in a situation where the cause of bankruptcy is the intentional actions of the business owners or the general director.

Based on Art. 56 of the Civil Code, holding participants accountable occurs in the correct sequence of actions:

• Initially, the organization declares itself bankrupt, so the procedure for repaying debts to various creditors begins at the expense of the existing funds and assets of the enterprise;
• in the process of filing the insolvency of a company, it is revealed that the main reason for the loss of solvency was the actions or inaction on the part of the director or founders of the enterprise;
• in this case, the violators are held accountable, for which a trial is held;
• the court obliges the director or founders to repay partially or fully the debt from personal funds and property;
• all culprits are jointly liable for debts, so the claims of creditors are transferred to the personal values ​​of citizens.

Thus, if any criminal or fraudulent actions are detected on the part of the founders of the company, they can be held accountable. The subsidiary liability of the LLC founder for debts implies that he will have to use personal property to pay off existing debts to creditors.

Material

The head of a company usually personally makes numerous and important decisions for the enterprise related to the development and functioning of the organization, therefore, if he makes any erroneous decisions or commits illegal actions that lead to damage to the work of the company, he is held liable.

This type of liability applies exclusively to the general director, who can be one of the founders or an employee. It applies not only to direct losses of an enterprise caused by the fault of a citizen, but also even to lost profits.

If it turns out that the company suffered material damage due to the actions of the manager, then the culprit will have to:

• replace lost assets;
• compensate for the costs that individuals have to bear to restore rights violated by the head of the enterprise.

If it turns out that the company did not receive a certain profit due to the actions of the director, then the damage caused by the director is calculated based on the provisions of the Civil Code. According to Art. 53 of the Civil Code, all participants of the company can demand compensation from the director for losses incurred, and for this there is no need to contact government authorities. If he refuses this process, he will have to file a lawsuit.

Criminal

The risks of the founder regarding the debts of the LLC may even be associated with the fact that the head of the company, who is also represented by a participant, may be held criminally liable. This happens exclusively in a situation where criminal acts committed against employed workers are revealed, and also includes various illegal actions for carrying out large-scale fraud with money.

The possibility of criminal prosecution depends on how serious the damage was caused. For example, such punishment is provided for when conducting illegal business activities or when performing various operations aimed at deliberately bringing the company to insolvency. Administrative liability may be assigned for such actions if the damage caused does not exceed 1.5 million rubles. If the damage is greater, then the provisions of the Criminal Code apply.

There are several grounds for bringing the head of a company to criminal liability. This includes situations:

• dismissal without cause of a pregnant woman;
• disclosure of trade secrets;
• refusal to employ a pregnant woman;
• delay in payment of wages for two months or a longer period of time, but it must be proven that such actions were committed for personal gain;
• copyright infringement;
• unfair competition, on the basis of which the company receives from 5 million rubles. in an illegal way;
• use of commercial bribery;
• illegal activities of the company on a large scale (from 1.5 million rubles) or especially large amounts (from 6 million rubles);
• tax violations and crimes;
• borrowing a trademark without legal grounds, which leads to damage in the amount of 1.5 million rubles;
• deliberate concealment of property, the purpose of which is the reluctance of management to repay debts to creditors;
• use of illegal methods to launder funds;
• evasion of repayment of debts or payment of taxes, and it must be malicious;
• abuse of authority in the process of company management.

If tax offenses are detected, a criminal case is opened if the amount of debt exceeds 2 million rubles over three years.

Types of punishments under the Criminal Code

For minor violations, the following penalties apply:

• fine up to 300 thousand rubles;
• arrest of the perpetrators for up to 6 months;
• community service up to 480 hours;
• imprisonment, and the term can even reach seven years.

But for more significant violations, serious penalties are used within the framework of the criminal liability of the founder for the debts of the LLC. Judicial practice shows that a fine of up to 1 million rubles, imprisonment of up to 12 years and forced labor for up to 5 years can be imposed.

Is the director held accountable after dismissal?

Even the dismissal of a director cannot become a basis for not holding him accountable if his involvement in various violations or bankruptcy of the company is established. Therefore, the court may recover compensation from him for the damage caused.

Criminal liability is extended to the dismissed director, but the statute of limitations is taken into account, the duration of which depends on the severity of the violation.

Conclusion

Each company participant should know what the founder faces for the LLC’s debts. Liability depends on the existing violations and circumstances. If the founder is also the general director, then he may be held liable for material, criminal or subsidiary liability. The remaining participants face only subsidiary liability.

Penalties depend on the severity of the crime or offense. Therefore, in some situations, the founders of a company can pay off the company’s debts using personal property.

When creating an LLC, founders should consider how limited the liability is hidden in the abbreviation of the form of ownership. And, accordingly, when, to whom and to what extent it (responsibility) may arise.

The Federal Law “On Limited Liability Companies” seems to be encouraging.

A phrase that is quite optimistic for LLC owners is taken out of context: «… The participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company only to the extent of the value of their shares in the authorized capital of the company ».

But everything is not so rosy. Let's remember the events with a series of closures of travel agencies. Many of them had the form of LLC ownership. And a flurry of lawsuits is directed directly at the leaders of these companies. Now we won’t talk about the fact that the manager on paper and the true owner are not always the same person.

If the subject has assumed a number of obligations, and these obligations are clearly stated in a number of legal documents (Charter; Establishment Agreement), - he is responsible.

Referring to the above-mentioned law, we can say: “well, okay, according to the documents, our authorized capital will be in the lower limits, so we will answer them!”
But we remember that any commercial activity should not contradict the laws of the Russian Federation. In addition to the collection of Federal laws, there is also the Civil Code. And, moreover, criminal!

So, if the fact of fraud is proven, the head of the LLC is liable precisely under this article of the Criminal Code. Accordingly, the punishment will already be within the framework of this particular article.

And there, in short:

• imprisonment for up to 10 years;
• penalty in monetary equivalent (up to 1 million rubles or income for several years), and can be applied together with imprisonment. ( More details can be found in the Criminal Code).

Most of the tour operators that suspended their activities are charged with the article “Fraud.”

Responsibility of the LLC founder for non-payment of taxes

Until 2007, responsibility for tax documents was shared between the manager and the chief accountant (or accountant, if the position of chief accountant was not provided in the company), since 2 signatures were placed on financial documents.

Since 2007 documentation signed directly by the manager, which means he is the one answering.

The proven fact of concealing taxes on a large scale carries with it punishment for the manager or founder:

• a fine in the amount of 100,000 to 300,000 rubles, or the income of the convicted person for a period of one to three years;
• forced labor for up to 2 years;
• deprivation of the right to hold certain positions and engage in certain types of activities.

For example, a manager brought under such an article will not be able to work in government bodies or government agencies. Plus restrictions on commercial activities;

• arrest up to 6 months;
• imprisonment for a term of up to 2 years with a restriction on holding positions for a period of up to 3 years or indefinitely.

Here we are talking about the so-called. “subsidiary” liability of the LLC founder. Simply put, if the property of a legal entity is not enough to cover the debts of creditors, the obligation to pay the debt rests with the manager and founder.

In cases of practice it may be personal property. That is, exactly the same case mentioned above, when it is not possible to limit liability to the size of the authorized capital.

The arbitration manager initiates the collection of subsidiary debt.
If he does not do this (and practice shows that this happens in cases of deliberate bankruptcy), the creditors themselves have the right to file a claim, assuming that there is a fact of concealment of income and because of this the accounts payable cannot be repaid.

Example: the director of a bankrupt company sells some property of the company, but hides the income from the sale and does not deposit it into the company’s account.

The bailiff collects the personal property of the debtor after the court finds the head of the company guilty of causing losses.

Also, bringing to vicarious liability entails:

• failure by the manager to file a bankruptcy petition, although in fact there are signs of bankruptcy;
• intentional distortion or loss of accounting documents;
• evidence of deliberate bankruptcy.

Often, an entrepreneur who has created a company with the LLC form of activity is concerned about what will happen if he takes out a loan for business development (for an enterprise) secured by property, if the enterprise goes bankrupt. Who is responsible for business failure?

In short: recover damages from the manager or founder possible only by proving guilt in the actions of the latter and the cause-and-effect relationship between the decisions made and losses.

Liability of the LLC founder to creditors

• If the company is liquidated voluntarily, a claim may not be filed.
• In the event of bankruptcy of a company, a claim may be filed by the bankruptcy (arbitration) manager on behalf of the Company, or by creditors after completion of the bankruptcy procedure. That is, in fact we have returned to liability in bankruptcy.

If the amount of damages caused less than 250,000 rubles the founder faces liability administrative; from 250,000 and higher – criminal.

The bank is also a creditor, and here it will logically depend on the amount borrowed by the company on credit.

Summing up

Responsibility under the Civil Code and the LLC Law:

The manager is held accountable if the abuse of company property is proven. This may be a transaction unfavorable to society or the disposal of LLC funds for purposes contrary to the interests of the company.

The claim in this case may be submitted by the Society itself.

Criminal liability is provided for:

• failure to ensure safety precautions resulting in the death or serious injury of an employee;
• unjustified dismissal of an employee (or refusal to hire without proper grounds);
• non-payment of salary and other benefits due to employees for more than 2 months;
• copyright infringement;
• conducting illegal business activities (without registration or when submitting documents for registration with knowingly false information);
• money laundering;
• illegal lending;
• evasion of loan repayment;
• coercion to perform a transaction;
• illegal receipt and disclosure of classified information;
• financial fraud (including illegal currency transactions), etc.
• tax avoidance

For more details, see the relevant articles of the Criminal Code of the Russian Federation.

In addition to civil and criminal liability, liability is provided for administrative offenses:

In general, the Code of Administrative Offenses provides for many points for which heads of legal entities, in particular LLCs, may be held liable.

Joint and several liability of LLC founders occurs if they fail to make a contribution to the authorized capital or fail to pay for the shares they own.

Taking into account the above, you can be sure that the head of a limited liability company does not have limited liability at all.

For violations of the letter of the law, he can answer:

• penalties,
• personal property,
• even freedom.

Therefore, any activity carried out by the head of an LLC requires careful attention to the law.