There is a misconception among businessmen that the mandatory repayment of enterprise debts only arises during the consideration of bankruptcy cases. Please note: the provisions of the law provide for the possibility of bringing the founder to subsidiary liability even without the bankruptcy of his company.
For example, let's take a fairly standard situation when an entrepreneur no longer needs a certain organization, but he decided to avoid the costs of closing it. Subsequently, after 12 months, the fiscal authorities forcibly excluded such a company from the Unified State Register of Legal Entities.
In the event that an investor database enterprise has a debt to the budget, the founder will not be able to avoid its collection. Tax liabilities arise due to the fault of the manager (he does not submit reports or simply does not pay what is due). The procedure for bringing the former founder to subsidiary liability is presented in the explanations of the Ministry of Finance of the Russian Federation dated February 15, 2018 No. 03-02-08/9589.
In addition to the fiscal authorities, the position of creditors should also be taken into account. They also have the right to bring the founder of a debtor enterprise who is not bankrupt to subsidiary liability. Let's consider a real situation when two shareholders closed a company that had a debt under a lease agreement in the amount of 700 thousand rubles.
The procedure for bringing to subsidiary liability
During the court proceedings, the defendant based his position on the fact that the leased property did not contribute to the economic development of the enterprise, and that this company no longer exists. These arguments did not prevent the creditor (lessor) from holding the shareholders of the debtor organization jointly and severally liable (decision of the Arbitration Court of the Republic of Tatarstan dated January 21, 2019 No. A65-27181/2018).
Creditors also have the opportunity to recover their funds from the KDL, including founders, if the indebted enterprise does not have funds for the bankruptcy procedure. This is the definition presented by the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated June 10, 2021 No. 307-ES21-29.
Subsidiary liability as a tool for blackmailing the founder
In practice, attempts to apply provisions on joint or subsidiary liability against the founder are often encountered in corporate disputes. This applies to situations where the company has several shareholders and they are trying to "squeeze out" one of them.
For example, one of the founders of a company can transfer its assets to other organizations under its control in order to conduct the bankruptcy procedure of such a company. After that, a creditor loyal to this shareholder files a claim for financial insolvency of the enterprise and, therefore, will hold the KDL liable for subsidiary liability (Supreme Court Judicial Practice Review No. 4 for 2020, paragraph 13).
However, the courts prevent attempts to use the bankruptcy of companies for blackmail in situations where conflicts arise between the founders. Thus, shareholders cannot be held subsidiarily liable based on the demands of other participants in the company for the distribution of dividends (definition of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated April 7, 2022, No. 305-ES21-2555