home · Planning · If the founder of an LLC is bankrupt, what happens next? Liquidation of a company: how the authorized capital is returned to the founders. How the authorized capital is returned during liquidation.

If the founder of an LLC is bankrupt, what happens next? Liquidation of a company: how the authorized capital is returned to the founders. How the authorized capital is returned during liquidation.

Bankruptcy is a fairly common procedure today, which almost everyone knows about. However, not many people know what happens next after the LLC founder is declared bankrupt.

What does the law say?

Bankruptcy procedures are regulated by the Civil Code of the Russian Federation. It states here that the founders are not responsible for the obligations of the LLC, however, the company itself is not responsible for the obligations of its founders.

The situation when it is not the company itself that is declared bankrupt, but only the founder (an individual), deserves special attention.

If the founder of an LLC is bankrupt and he is also the owner of the business, this means that this organization does not have property or any monetary assets to be able to pay off creditors.

Situations often arise when the company has no industrial equipment, no furniture, no office equipment, no funds in its accounts - nothing at all that can be sold to benefit the debt. At the same time, the debtor tries to sell shares, get rid of property, and resorts to various frauds. In this case, if he cannot be convicted of an offense, such a person is declared bankrupt. After which the organization is assessed by an arbitration manager or an hired expert and put up for sale using electronic trading to pay off the debts of the founder of the bankrupt LLC.

Bankruptcy procedure

Like any citizen, an LLC participant may accumulate accounts payable that he is unable to repay. The composition of such debt is not important - it can be overdue loans for business or personal needs, debts on taxes, fines, alimony, etc.

The debtor himself, the authorized body (for example, the tax inspectorate), and his creditors can apply to the arbitration court with a written application for recognition of bankruptcy. To accept the application, the amount of debt must be more than 500 thousand rubles, and the delay in payment must be more than 3 months. Moreover, taking into account the requirements of the law, the debtor himself must apply to arbitration within 30 days if the satisfaction of all such claims from creditors leads to the impossibility of paying the debt.

After acceptance of the application and other documents attached to it and confirming the applicant’s arguments, a determination is made on the validity of this application. Approval of a positive decision is considered the beginning of the procedure for declaring the founder of the LLC bankrupt. And then there are a number of different procedures that will be discussed below.

Debt restructuring

After accepting the application of the debtor or his creditors, the latter are given 2 months to formulate a list of claims against the debtor - all debts of the LLC founder must be included here. Upon completion of the formation of this register, the citizen, authorized body or creditors, within 10 days, prepare a debt restructuring plan, which indicates the procedure for repaying debts, as well as the duration of this event.

If the debtor and other interested parties have not submitted a debt restructuring plan, the financial manager, taking into account the requirements of the law, proposes to the meeting of creditors to declare the debtor bankrupt and begin the sale of the property that belongs to him.

So, the founder of the LLC is declared bankrupt. What restrictions will be placed on it?

Restrictions for the debtor founder of an LLC

In the process of debt restructuring, that is, from the moment the bankruptcy petition is accepted and recognized as justified, until the debt is fully repaid or the property begins to be sold, the following restrictions are imposed on the founder of the LLC:

  1. The founder has the right to make one or more related transactions for a monetary amount of more than 50 thousand rubles. with securities or in relation to one’s own share in an LLC after the permission of the financial manager. The list of such transactions includes: acquisition of shares in an LLC; alienation or other transactions that may lead to further loss of shares in the LLC, transfer of shares as collateral.
  2. Receiving and issuing loans, issuing guarantees or guarantees for debts of third parties, transfers of debt and other similar transactions, which does not depend on the size of their amount, are carried out only after receiving the written consent of the manager.
  3. A bankrupt person is prohibited from acquiring shares in the authorized capitals of enterprises or making contributions to authorized funds.

It should be remembered that the provisions of Federal Law No. 127, which regulates the consequences of bankruptcy, in the process of restructuring the founder’s debt do not in any way limit the right to his participation in the management of the LLC.

What to do with an LLC if the founder is bankrupt?

Consequences of bankruptcy of the LLC founder

From the day the founder of the LLC is declared bankrupt (an appropriate ruling is made by the arbitration court), all of his property, including his share in the LLC, is included in the bankruptcy estate. This means that the consequences that are listed in the above federal law occur, in particular:

  1. Any transactions involving the debtor’s property that are made without the permission of the financial manager are considered void.
  2. The rights to dispose of the property of the bankrupt LLC founder are transferred to the disposal of the financial manager. Accordingly, the rights to participate in the management of the LLC (for example, voting at meetings, etc.), and to protect corporate and property rights in court should also be transferred to him.

Proposals to court

If the sole founder of the LLC is bankrupt, from the time the property inventory process is completed, the financial manager, according to information from Federal Law No. 127, within 30 days must submit to the arbitration court proposals that relate to the procedure, price and timing of the sale of the founder’s property. According to the same legislative act, if arbitration or creditors do not come to a different opinion, the share of the LLC participant must be sold at auction. Creditors also have the opportunity to take ownership of the LLC’s share (if the charter of this organization allows such an option) to pay off debts.

It is important to find out in advance what happens to an LLC if the founder goes bankrupt.

What to do if the property is not sold?

Sometimes it happens that the property of the LLC founder or his share cannot be sold and none of the creditors is willing to accept them as debt write-off. In such a situation, the financial manager, by virtue of the provisions of Federal Law No. 127, is obliged to transfer them to the founder-debtor, whose right to full disposal of his property or shares in the LLC is subject to restoration. Thus, the property of the bankrupt founder is included in the bankruptcy estate for further sale to pay off all existing debts. If no one wants to purchase it, ownership rights return to him in full.

We looked at what the liability of an LLC founder is in bankruptcy.

It often happens in our lives that there is a need to liquidate a limited liability company (LLC). Such a need may be associated with various situations, but in any case the question arises: “where to put the authorized capital when liquidating an LLC?”

According to legislative acts, the amount of the authorized capital of a limited liability company is at least 10 thousand rubles. Moreover The authorized capital can be presented both in cash and in the form of any property. In any case, its size must be specified in the organization’s charter.

How to take into account the authorized capital when liquidating an LLC?

When accounting for the authorized capital, in the event of voluntary liquidation of the LLC, it is displayed in the “Liabilities” article. In accordance with the order of the Ministry of Finance, if an LLC is liquidated through reorganization, then the founders do not have to necessarily reflect the transfer of capital in accounting documents.

If there is a liquidation of an LLC that has accumulated debts, then everything is not so simple. And then, the question of what to do with the authorized capital during the liquidation of an LLC is more acute.

Other LLC liquidation options

In a number of cases, such liquidation occurs, during which the company continues its activities, but structural changes occur within the company. This happens if:

  • one or more participants decided to leave the founders of the company;
  • the structure changes, that is, division and merging occur.

Let's take a closer look at what each of these cases means. The possibility of one or more participants leaving the LLC must be specified in the company's charter.

This is a requirement of the law and, accordingly, if such a possibility is not in the charter, this cannot be done without the consent of the other founders. Details of such a procedure must also be specified in the charter. It is also worth noting that if there is only one founder, then the authorized capital upon liquidation of an LLC with one founder becomes the property of the LLC.

Read also: Bank details of the organization by TIN

Briefly, the procedure for the exit of one or more participants can be represented as the following actions:

  • writing an application for exit;
  • approval of the application by the meeting of founders;
  • notification to the tax office.

In this case, the return of the authorized capital of the LLC upon liquidation occurs in the following way - the share of the participant who left the founding board is transferred to the remaining participants of the LLC, or his share is transferred to third parties.

If there is a change in the structure of an organization with this form of management, then questions about how to take away the authorized capital during the liquidation of an LLC do not arise at all. This is due to the fact that with any reorganization, a new formation of the authorized capital occurs, but this does not happen using the same methods as when opening an LLC. In the case of reorganization, the authorized capital is formed from the liabilities of the reorganization participants.

Redistribution of capital in case of liquidation

Distribution of capital between participants during the liquidation of a company is possible only after the requirements of all creditors have been met in full. So where does the authorized capital go when closing an LLC?

To answer this question more fully, you need to know the mechanism of the liquidation procedure. In order to carry out the procedure correctly, a so-called liquidation balance sheet is drawn up, which takes into account the interests of all creditors.

After the creditors are satisfied, the amount remaining on the balance sheet can be distributed among the founders in shares, the amount of which is specified in the company's charter. If the creditors' claims are greater than the amount of the liquidation balance, the founders, of course, will not receive anything.

Authorized capital and bankruptcy

It happens that a limited liability company is declared bankrupt. This can happen either on the initiative of society itself or due to other reasons. In this case, the property that constitutes the authorized capital is sold through auction. For the bankruptcy procedure, the arbitration court appoints a bankruptcy trustee.

The authorized capital of any limited liability company is a necessary asset that guarantees the fulfillment of obligations to creditors. When liquidating an LLC, the fate of these funds or property is resolved by the liquidation commission, that is, a special body that implements the necessary procedures when the company ceases to exist. The legislation allows two possible options for disposing of an organization's authorized capital: directing it to fulfill obligations to the company's creditors or distributing it among participants. The choice of a specific method depends on the company’s balance sheet during the period of its liquidation, the availability of sufficient assets to independently repay all claims of counterparties and other creditors.

When the authorized capital is used to pay off debts

After a decision is made to liquidate the LLC, a special body called a liquidation commission is created. It is this commission that has the authority to resolve all issues related to the property and authorized capital of the company. After summing up the results of activities and recording all the company’s obligations at the time of termination of activities, settlements with creditors are carried out. If the company’s profit and other assets belonging to it, including property, are not enough to satisfy all justified demands, then the funds or property that make up the authorized capital are also used for settlements with the partners of the liquidated company.

When the authorized capital is distributed among the company's participants

If, after completing settlements with creditors of the liquidated LLC, any property remains, then the liquidation commission is obliged to distribute it among the participants of this company. First of all, the law obliges the participants to pay the distributed profit of the company. After this, distribution of other assets, including the authorized capital of the company, is carried out. The form in which the authorized capital exists is not of fundamental importance, since all property and funds must be allocated to the participants of the company in accordance with the shares that each of them has in the authorized capital. The law does not provide for other ways of disposing of the authorized capital of a company during its liquidation, therefore one of the described options must be implemented.

When ceasing its activities, the company must complete one more mandatory liquidation procedure - pay off payments to the company's participants.

In other words, to distribute the property that remains with the enterprise after mutual settlements with creditors among all participants of the company according to their contributions with which they formed the authorized capital.

The distribution of authorized capital during the liquidation of a business is a rather complex process, during which many factors must be taken into account.

Concept

The authorized capital (AC) is the initial reserve united by its participants, which is necessary for the operation of the company. ( ,).

From the legal side, it represents the value of the property owned by the enterprise and within which it will, if necessary, be liable for the arising obligations of creditors.

From an economic point of view, this is the minimum amount of funds that an enterprise needs in order to successfully start a business activity as defined by the charter.

The authorized capital is primarily a guarantor of the interests of the creditors of this capital. Its large size indicates the reliability of the company, increases its prestige, and also affects the business rating of the company.

In addition, the size of the capital also affects the receipt of certain types of licenses.

The responsibility for its formation lies with the founders. It is formed by contributions from the founders when creating the company. It can be contributed both in money and in material assets expressed in monetary terms.

Based on the economic and legal understanding of this concept, its main functions can be formulated:

  • starting - providing an opportunity for an enterprise to start a business activity;
  • structural - division into shares allows you to assess the degree of participation of each founder in the management of the company, and also makes it possible to distribute profits in the amount determined by the size of the share;
  • guarantee - the value of the capital is intended to demonstrate the degree of its solidity in the eyes of creditors. In addition, creditors, based on the amount of the capital, can calculate the amount within which the company can fulfill its obligations.

Video: essence

Legislation

The legal regulation of management companies in Russia, as in most developed countries, is aimed at protecting the interests of the company itself, its participants and creditors.

Russian legislation, establishing requirements for the Criminal Code, pursues the following main objectives:

  1. Ensure the actual formation of the management company.
  2. Maintain the property of the enterprise at a level that should not be lower than the size of the capital provided for by the charter.

The legal regulation of the Criminal Code is carried out by the following regulations:

  • Civil Code;
  • regulating the creation of state and municipal enterprises;
  • regulating the activities of LLCs;
  • regulating the activities of joint-stock companies.

Common cause

When creating a company, its founders pool their capital under certain conditions, which are fixed in the constituent documents.

The combined capital of the participants will be the basis for the subsequent economic activities of the company aimed at making a profit.

Each founder of a company has the right to participate in the management of its affairs, as well as to receive information about its activities.

The founders must be given full access to accounting and other documents reflecting the activities of the company.

All decisions regarding the activities of the company are made jointly by the founders at general meetings by voting.

In addition, the founders have the right:

  • participate in profit distribution;
  • leave the company and take your share of the property;
  • sell your share;
  • introduce issues for consideration at the general meeting;
  • be elected to the management and control bodies of the society.

This is the main list of rights guaranteed to founders by law, which cannot be reduced.

If desired, the founders can expand this list by recording additional rights in the company's charter.

Proportionality of contributions

The law allows the founders to make the decision on how and in what amounts the authorized capital of the company will be formed independently.

Contributions from participants must have a mandatory monetary value.

Each participant who has contributed his capital to the authorized capital of the company is endowed with certain rights in the amount of his contributed share.

Authorized capital upon liquidation

The right of participants in business companies to receive, in the event of liquidation, part of the property that will remain after the claims of all creditors have been satisfied is provided for.

return or partition rules

According to the requirements of this article:

  • first priority belongs to citizens whose lives or health were harmed due to the fault of the liquidated enterprise;
  • secondly, it is necessary to settle accounts with the company’s employees, which include severance pay, payment for their labor and payment of other remunerations;
  • the third priority belongs to payments to the budget and extra-budgetary funds;
  • all other creditors can count on repayment of debts in the fourth order.

The claims of each queue of creditors can be repaid only after the claims of the previous queue are satisfied.

It should be noted that the founders of the company cannot act as its creditors, and accordingly can only count on the property that will remain after satisfying the claims of all priority creditors.

debts to founders

The property remaining with the enterprise after settlements with creditors is distributed among its participants (in proportion to their shares).

Such distribution is carried out on the basis of the relevant act, which reflects how the property will be distributed. This act must be signed by all members of the company.

In what order and exactly what documents are submitted to the archive during liquidation, you can find out

Features for LLC, JSC and MUP

The authorized capital is formed only by commercial organizations, which include JSCs and LLCs (). State enterprises and municipal unitary enterprises, the formation of which is regulated, form an authorized capital.

The features of the formation of a criminal code for each specific OPF are different and are regulated by relevant legislative acts.

In both LLC and JSC, the authorized capital is divided into parts, but in LLC it consists of the nominal value of the shares owned by its participants, the size of which is determined as a percentage.

And in a joint-stock company, the starting capital of the company consists of the par value of the shares issued by the company, which were acquired by its shareholders.

The legally established minimum size of the capital for each OPF also differs.

UV in the state and municipal enterprises is formed by the owner of the property throughout three months after the state passed. registration of municipal unitary enterprise.

Distinctive features of UV from UK:

The authorized capital is uniform and cannot be divided;
The legal capacity of the enterprise arises in full only after the complete formation of the MF.

The procedure for liquidating a municipal unitary enterprise is determined by the Civil Code.

It can be liquidated by decision of the owner who owns the property after the period for which it was created has expired or the goals that were the goals of creating the enterprise have been achieved.

After settlements with creditors and drawing up a liquidation balance sheet, the property of a municipal unitary enterprise is transferred to its founders, who have proprietary rights in relation to this property.

Closing an enterprise is a complex multi-stage process, and the distribution of capital is one of its components, which must take place in strict accordance with the law and only after all creditors that the company has are satisfied.