Founder of the company. Best selection of materials on the question: who is such a founder

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Accountant when qualifying the economic operation associated with the payment of the founders, it is necessary to deal with difficulties arising from the contradictions contained in the norms of Russian legislation, fuzzy definitions of economic and legal content of the facts of economic life, as well as the special status of founders as the owners of the company. About how to make it possible to make and take into account the cost of the founder, learn in the article

13.02.2015
Actual accounting

Who is the founder?

We will try to understand who the founder is and what is his rights regarding the management of the organization's financial resources. Immediately we note that we will talk about commercial organizations, the main purpose of which is profit.

Often among entrepreneurs make up the opinion that the founder is the owner of the business. It is the founders that the organization is obliged to their existence, as they have invested their means and effort into its creation. However, Russian legislation determines that the property of owners is separate from the property of the organization, they have created. The founder (participant) of a legal entity is not responsible for the obligations of a legal entity, and the legal entity does not respond to the obligations of the founder (participant) (paragraph 3 of Art. 56 of the Civil Code of the Russian Federation). The founder owns the share (shares) in the authorized capital, and not the property of the organization itself. The obligations of the founders are limited to their shares in the authorized capital and the need to participate in the management of the organization. Thus, the founder does not have the right to dispose of the property of society. Federal Laws on Joint-Stock Companies and Limited Liability Societies identified the responsibilities of the founders (federal laws of 08.02.1998 No. 14-FZ, from December 26, 1995 No. 208-ФЗ). Among them, we will single out the following: the need to deploy a contribution to share capital, participation in the general management and management of the activities of a commercial organization, the creation of the Board of Directors. It should be noted that the founders may be part of the Board of Directors, and may not be members of the constant governing body of the Company. The belonging of the founder to the Board of Directors is a significant moment in the qualifications of its costs in income tax.

Payments to Founders and Tax Code

Expenditures and payments regarding founders are regulated by the following regulations of the Tax Code:

sub. 49 p. 1 Art. 264 - other expenses associated with production and (or) implementation (in some cases, the financial department allows you to recognize the costs of this item);
p. 2 art. 264 - The composition of representative expenditures relating to the other costs associated with production and (or) implementation include the costs of participants who arrived at the meeting of the Board of Directors (Management Board) or other taxpayer's governing body, regardless of the place of these events;
sub. 16 p. 1 Art. 265 - The costs of shareholders collections (participants, shareholders), in particular: rental of premises, preparation and distribution required for meeting information and other expenses directly related to meeting meetings;
p. 21 art. 270 - to expenses not taken into account for tax purposes include the costs of any types of remuneration provided to management or employees in addition to remuneration paid on the basis of employment contracts (contracts);
p. 48.8 art. 270 - to the expenditures not taken into account for tax purposes include the amount of remuneration and other payments made by members of the Board of Directors.

As can be seen from the indicated tax tax rules, a list of situations that allow to recognize the costs of founders, small. In our opinion, a significant limitation regarding the recognition of such expenses is $ 48.8 Article 270 of the Tax Code, which literally strikes out all payments in favor of members of the Board of Directors at the rate of income tax.

The official position of the Ministry of Finance of Russia is that the relationship of members of the Board of Directors and Organizations does not apply to any civil relations or labor relations, if the relevant contracts are not consistent (the letter of the Ministry of Finance of Russia dated 05.03.2010 No. 03-03-06 / 1 / 116). Referring to this letter of the financial department, we consider it necessary to explain the following situation. The letter discusses a specific episode of remuneration to members of the Board of Directors. This suggests that the costs that do not concern incentive payments do not relate to the conclusions. However, the phrase of "other payments" literally means all payments in favor of members of the Board of Directors.

Thus, in order to avoid tax risks on income tax, all payments to members of the Board of Directors should qualify as expenses not accounted for in taxation. If an employment contract or GPH contract is not concluded with a member of the Board of Directors, then all fees compensation to these persons are not taken into account when calculating income tax (travel expenses, hotel pay, representative spending, etc.).

Founder's expenses in some cases

Consider the most common situations where the founder acts in the interests of the company:

participation in organizational measures to manage the economic society provided for by the Charter;
fulfillment of certain functions of employees of the company;
representing the interests of the company in various relationships with third parties (meetings with buyers, suppliers, authorities).

It should be noted that the personal needs of the founders in their own interests can be paid by the company, but only within the dividends put it or in coordination with other participants of the Company. This situation is sometimes found in practice, but should not be regular. Otherwise, the company will be unprofitable, and this does not serve as the main goal of creating a commercial organization - the extraction of profits. Such expenses are definitely not taken into account in order to tax return.

Consider the first situation when the founder needs to arrive at the general meeting of founders in a subsidiary. In this case, the founder may be at the location of the subsidiary, and can live in another city or another country. At the same time, he may have an employment contract with it, and may not consist in its state.

If the founder lives at the location of a subsidiary, he does not need expenses for the trip. If he is in another city or country, it is necessary to take care of organizing his trip (purchase of tickets, a visa, living, nutrition, etc.).

We'll figure it out if this trip can be considered a business trip? A business trip - a worker's trip to the employer's disposal for a certain period for the fulfillment of official order outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). At the same time, employees consisting in labor relations with the employer (p. 2 post. Government of the Russian Federation of October 13, 2008 No. 749) are sent to business trips.

There are often cases when the parent company sends its representative to the meeting of the founders of a subsidiary, making an orders for a business trip. In this case, the maternal company has travel expenses. In our opinion, such expenses can be accepted by a heading in tax accounting, as they are associated with activities aimed at receiving income. After all, the funds invested in the authorized capital of the subsidiary are financial investments and should bring dividends.

Please note: if a subsidiary has an employment contract with the founder, then she travels such an employee can qualify as a business trip. The cost of such a business trip is better to consider under the article "Other expenses related to production and implementation".

In the case, if an employment contract is not issued between the founder and a subsidiary, this trip is not a business trip. Therefore, the expenses of the founder for travel to the place where the meeting of the founders of the subsidiary is being held, it is impossible to take into account the article "Traveling expenses" (sub. 12, 1 Art. 264 of the Tax Code of the Russian Federation).

Some experts believe that the expenses under consideration of the founders can be taken into account as executive expenses. Others adhere to the opinions that the list of executive expenses is closed and the extended interpretation is not subject to. Therefore, the organization independently should decide on the recognition of such expenses in tax accounting, evaluating all possible risks.

Issues related to the recognition of the expenses for the travel of founders (payment of passenger tickets, transfer, hotels, visas, food, transport support, etc.) are controversial. On the one hand, these are the costs of the founders themselves, as they are obliged and are interested in participating in the management of a subsidiary. On the other hand, the subsidiary is also obliged to attract the founders in its activities. These relationships should be regulated by the Charter.

In our opinion, the cost of organizing the travel of founders in tax accounting can be attributed to other expenses related to the production and (or) implementation (sub. 49 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation). At the same time, the goal of the trip should be provided for by the Charter and the presence of the founder be sure to address the issues of the Company. For example, the appointment of the Director-General, Auditor, Auditor, the approval of the annual report and other activities necessary in the Company's activities. These costs are not normalized by tax legislation. However, it will be useful for the company to make an estimate or budget of the activities, agree on this document with all the founders and approve it from the Director General. In this case, it is necessary to inform the founders about their responsibilities to provide documents to the company confirming their costs. A convenient document for such a situation is the form of an advance report on the form of AO-1 with the application to it all the necessary documents.

A subsidiary can take the initiative and independently pay part of the costs of organizing the trip and residence of founders on the basis of contracts with transport agencies and hotels on non-cash payments. Then supporting documents will provide relevant counterparties through responsible persons of the company.

If the goal of the event for which the founder arrived is not stipulated in the charter, the organization will be difficult to prove the economic validity of the expense of the founder's trip. After all, all the functions of the company should be provided by regular employees. Most likely, the payment of such a trip to the tax authorities will not be considered as a company's consumption, but as an individual's income. In the event of a similar situation of the organization, it is preferable to provide information to the Tax Inspectorate on the inability to keep NDFL.

Boftle service (buffet), breakfast, lunch, transportation for the delivery of founders to the meeting place, payment of translators during a representative event is recognized as a cost of tax purposes. However, if the activities carried out, such as dinner in the restaurant, do not matter officially or there are no documents confirming the conduct of official business negotiations, the costs of their conduct are not taken into account for the purpose of taxation of profits (the letter of the Ministry of Finance of Russia dated November 16, 2009 No. 03-03-06 / 1/759).

To confirm executive expenses, we recommend to publish an order to conduct an event, approve the estimates and appoint a person responsible for the event. A responsible person must be submitted a report on holding an event and attach all documents confirming costs to it. Executive expenses during the reporting (tax) period are included in other expenses in the amount not exceeding four percent of the taxpayer's expenses for pay for this reporting (tax) period.

Consider the second situation when the founders perform certain functions of the company's employees.

If an employment contract has been concluded with the founder, then the costs of its wage or business trips are taken in normal procedure when calculating income tax.

If the founder is not an employee of the company, his participation in the company's current activities should be regulated by the Contract Agreement, the compensated provision of services or other agreement of civil law (GPC).

The expenses of the founder for travel or executive expenses are negotiated under the terms of the GPC treaty and reimburse him on the basis of the application, provided that the relevant confirmation documents are applied.

Under the agreement of the GPC, the founder should be assigned a remuneration that is taken into account in the costs. The choice of a flow article depends on the subject of the contract.

At the same time, the remuneration for the implementation of labor functions or liabilities under the GPC Agreement should be clearly delimited from remuneration for the obligation of a member of the Board of Directors. Since expenses in the form of the amounts of remuneration and other payments made by members of the Board of Directors are not taken into account in order to tax (p. 48.8 of Art. 270 of the Tax Code of the Russian Federation).

Consider the situation when the founder represents the interests of the company in various relationships with third parties (meetings with buyers, suppliers, authorities).

The circumstances of this situation are very similar to the previous relations of the founder and a subsidiary. If the founder acts in the interests of the company, this means that it performs specific functions. But often the founder does not express the desire to enter into any agreement with a subsidiary.

If the founder is paid a remuneration without registration of an employment contract, its amount is not taken into account in the costs (paragraph 21 of Art. 270 of the Tax Code of the Russian Federation). If the remuneration is not paid, then the activity of the founder in favor of the company can be qualified as a gratuitous provision of services, which entails the emergence of non-dealerization income during income tax.

The expenses of the founder are made in tax accounting, if they are documented and aimed at receiving income. These may be negotiations with suppliers or buyers, representatives of the authorities. The purpose of the negotiations with representatives of the authorities should be associated with the decision of issues essential for the company's activities, the composition of the costs and their amount - reasonable within the practices of business turnover: water, coffee, tea, cookies, etc. No souvenirs, gifts are not included in the list of executive expenses.

It should be safely qualified payments compensating for the cost of founders if they are members of the Board of Directors. Therefore, the literal reading of paragraph 48.8 of Article 270 of the Tax Code does not allow any payment to members of the Board of Directors in order to tax purposes.

Often, when implementing the activities of the founders in the interests of the company, there is a need to use official transport.

In this case, the cost of a trip to the meeting place can be taken into account as part of executive expenses. At the same time, the cost of the trip should be confirmed by a travel sheet, and the goal of the trip is related to the solution of issues essential for the company's activities.

Let's summarize and present our conclusions in the form of a table (see below).

Justification of the founder's expenses in tax accounting

Founder's expenses before logging

When calculating income tax organizational expenses until the registration date are not reflected regardless of whether they are in accordance with the constituent documents contribution to the authorized capital or not. This is explained as follows.

The legal legal capacity arises at the time of its registration (paragraph 3 of Art. 49, paragraph 2 of Art. 51 of the Civil Code of the Russian Federation). In accordance with paragraph 1 of Article 252 of the Tax Code, expenses are reasonable and documented the costs incurred by the taxpayer. Before registration, the organization is not a taxpayer, so the costs incurred before registration, when calculating income tax is not taken into account.

Accounting calculations with founders

Information about all types of calculations with the founders (participants) of the organization is reflected in the account 75 "settlements with the founders".

The costs of founders associated with production and sales are reflected by the wiring:

Debit 20 (26, 44) Credit 75.

Other expenses founders are issued by the following entry:

Debit 91 Credit 75.

When paying income from participation in the organization is recorded:

Debit 84 Credit 75.

If the founder is an employee of the organization, the accrual and payment of revenues to him from participation in the organization is not recorded on the account 75, but on account 70 "Calculations with the staff for wage." At the same time the next entry is performed.

The rights and obligations of the founders of LLC are regulated by the Federal Law of 08.02.1998 No. 14-FZ. The main feature and honors from the founder from other entities of law is that he responds with lenders only within its share.

The founders of the Company are citizens and organizations that have decided to create it. In other words - it is founders of the organization. Under the concept of participants imply citizens or legal entities who have come to society after its creation. In essence, the founder and the participant are identical concepts, since after registering society, the founder goes into the category of participant. Most legislation does not distinguish these concepts.

Basic and Additional Rules and Rules

Participants have the right and obligations that are set out in Articles 8 and 9 of the Ltd Law. Fundamental rights include:

adoption of management decisions in relation to the affairs of the Company in accordance with the charter and federal legislation regulating its activities;
obtaining full reporting on the activity of LLC, the possibility of familiarizing with its accounting and other documentation;
participation in the distribution of profits;
alienation of its own share by selling and in other ways;
comes from society by transferring its own share to society;
the possibility of obtaining at the time of liquidation of society a certain share of property or its cost.

TO additional rights These are different rights reflected in the Charter. Basically, additional rights are prescribed in the Charter until the registration date.

Additional rights that were attributed to one participant cannot be transmitted to another participant in the event of a share. They can be restricted or terminated on the basis of universal decisions of owners.

The decision becomes eligible when the majority of founders who took part in the meeting were voted for him in the presence of a quorum.

A participant who has additional rights can always refuse them by sending an application to the Company in advance. Upon receipt of this application, the right-to-participant is not saved to the participant.

The owners of the organization can be among themselves a specific agreement on the definition of rights in the organization, on the basis of which they make an obligation to delimit their rights or refuse their implementation, which may also include voting at the general meeting, moments regarding the alienation of the share or its part.

There may be other actions on the coordination associated with the management, creation and activities of the Company. The contract is compiled in writing with the mandatory signing by all participants.

The main responsibilities of participants include:

payment of the authorized capital (order, sizes and deadlines is enshrined in the Agreement on the establishment and law on LLC);
non-disclosure of confidential information.

Responsibilities assigned additionally The participant can be spelled out in the Charter at its establishment or entrusted with a unanimous decision. Additional duties also do not go to another person. On the basis of a unanimous solution, they can be canceled.

Exception process: Change, output, calculations

The participant has the right to exit society at any time, for this he needs to contact the company with a written statement about the exit of society and alienation the last share, regardless of the consent of other participants.

The application must be certified notarial. The legislator prohibits the departure from society to all owners, is considered invalid when there are no participants in LLC, the only owner also cannot leave the organization.

Changing the composition of the owners of the organization can be conducted two ways:

through the conclusion of the share acquisition agreement;
by leaving the organization and adoption of the new owner.

The share of the share of the share must be certified notarized. In addition to the contract, the notary must be brought the following documents:

application for the approved form and (the participant's signature is certified in the presence of a notary with the obligatory presence of a passport);
extract from the register;
certificate of state registration;
evidence of registration in tax;
the original of the Charter of the Company (with the "live" printing of the tax inspectorate);
list of participants in the Company;
the notarious consent of the spouses to make a transaction or a statement of a transaction participant that he does not consist in marriage;
original protocol or solutions of the only participant confirming the commission.

To register changes notary alone Direct documents to the tax inspection.

The second way of changing the participant is as follows. Having written the appropriate application to the Society addressed to the head, the participant comes out of it. Within 3 months, society is obliged to pay him the cost of his share.

It is worth noting that with this embodiment of society, the corresponding positions must be spelled out in the charter.

Then in society new participant enterswhich makes cash in the authorized capital. Next, it gives a share previously belonging to the retired participant. In this case, the notary assures only the applicant's signatures on the statements when the founders change, respectively, you can do without payment for the notary.

On special happens change of the only participant. There is an alienation of the share of the participant under the contract of sale of a physical or legal entity.

When committing this transaction, you will need to refer to the notary for the execution of notarial actions and the provision of the above documents.

Read more about the responsibility of the founders can be found in this video.

Who can become

Founders can be citizens and organizationsHowever, the federal law limits the circle of persons who have the right to engage in commercial activities and be the owner of the company.

The law states that local governments, as well as government agencies, is prohibited by the founders of LLC. Accordingly, the city administration, executive committees, law enforcement and supervisory authorities cannot create such societies, as it will contradict the current legislation.

Lawyer

The lawyer may act as the owner of LLC. The prohibition applies only to paid activities, not counting scientific, teaching and creative, it is spelled out in Art. 2 FZ of the Russian Federation, regulating lawyers. Enjoy a certain property that makes a profit is not prohibited. Work on hiring, that is, according to the employment contract, the lawyer cannot.

State employee

The civil service can also be a founder, as restrictions associated with its work are applied to it. Article 11 of the Federal Law of the Russian Federation "On the Fundamentals of the Public Service of the Russian Federation" indicates that the public servant is not entitled to carry out other paid activities other than the pedagogical, scientific and other creative activities. The Anti-Corruption Act also prohibits civil servants to be founders of LLC.

State-financed organization

Budget institution is non-profit organization, Created by the Russian Federation, the subjects of the Russian Federation or the municipal formation for the work, provision of services. It follows from this concept that this type of institution was created by the state or the municipality, respectively, the prohibitions directly reflected in the law on LLC applied.

Deputy

The Federal Law, which regulates the activities of the State Duma and Council members of the Federation Council, prohibits them to engage in entrepreneurial activities and participate in activities related to the management of economic society, including in the work of the General Assembly.

MUP

The municipal unitary enterprise has the right to speak the founder of a limited liability company, since the Federal Law "On State and Municipal Unitary Enterprises" allows unitary enterprises to be members of commercial and non-commercial organizations.

In addition to the desire to become a member of the Company, these enterprises need to be the consent of the owner. Also, municipal employees and servicemen cannot be played as participants.

Process of formation

The founder of LLC is quite simple. In addition to desire, it is necessary to calculate their chances and opportunities, not only financial, but also relative to relationships with future partners and, for example, with.

It is necessary to outline and determine the client base, since the success of the organization depends on a good start.

In order to become the only founder of society, it is necessary:

develop a charter LLC;
approve the decision to create a society;
prepare a statement on the creation of a software company;
conclude an agreement for renting an office space, or it is necessary to have its own (for registration of the legal address);
pay the authorized capital (the minimum amount of 10 thousand rubles) in any of the banks, it is desirable to choose the one with which you would like to work further. It is possible to replace the property contribution, for this requires a market assessment;
pay state duty for registration in the amount of 4000 rubles.

Documents More than one sheet must be stitched, numbered numbers on each page and are signed by the founder.

When creating a society, several founders, in addition to the documents listed, need a contract of the institution, the list of participants, instead of the decision of the sole founder, the Protocol is approved.

How is the change of founders of LLC, you can find out on this video.

When choosing an organizational and legal form (IP or LLC), the main argument in favor of registration of society is often the limited liability of the legal entity. In this, Russia is different from other countries where the company is created for the sake of the partnership, and not due to the care of financial risks. About 70% of Russian commercial organizations are created by the only founder, he also, in most cases, leads the business itself.

Many focus do not function, without earning even the salary of the director and not differing from the profitability from the freelancer, which provides services in free from work, time. Nevertheless, legal entities in Russia register as often as IP.

If you want to learn in detail than the organization differs from an individual entrepreneur, we advise you to get acquainted with the article "", and here we will try to dispel the myth that the company registration is a sure way to avoid business losses.

Responsibility of a legal entity

To begin with, we will find out where the confidence is coming that entrepreneurial activities in the form of LLC is financially safe? Article 56 of the Civil Code of the Russian Federation states that the founder (participant) is not responsible for the obligations of the organization, and the organization does not respond to its debts. That is why the question is: "What is the responsibility of the founder of LLC?" Most responds - only within the share in the authorized capital.

Indeed, if the company is opened and in time is calculated before the state, employees and partners, it is impossible to attract the owner to pay for the company's accounts. The established organization acts in civil circulation as an independent person, and herself is responsible for its own obligations. As a result, a false impression of the complete lack of responsibility of the owner of the LLC in front of creditors and budget.

However, the Company's limited liability is valid only as long as the legal entity itself exists. But if Ltd. is recognized by bankrupt, then participants can attract additional or subsidiary responsibility. True, it is necessary to prove that the company's financial catastrophe led exactly the actions of the participants, but the lenders wishing to return their money will make every effort.

Article 3 of the Law of 08.02.1998 No. 14-ФЗ: "In case of insolvency (bankruptcy) of the Company for the fault of its participants on these persons, in the event of deficiency of the Company's property, subsidiary liability may be assigned to its obligations."

Subsidiary responsibility 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 should be million, then it will be charged from the founder of the LLC in full, despite the fact that only 10,000 rubles permanently at all.

Thus, the concept of limited liability within the authorized capital is related only to the organization. And the participant can be attracted to unlimited subsidiary responsibility, which in the financial sense equalizes it with an individual entrepreneur.

Head and founder in one person

Subsidiary liability of the founder and director of LLC for the obligations of a legal entity has its own characteristics. In a situation where the organization is managed by a hired general director, some share of financial risks goes to it. According to Article 44 of the Law "On OOO", the head in response to the Company for the losses caused by its guilty actions or inaction.

Responsibility 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 managed by him, based on personal interest;
hiding information on the details of the transaction or the non-treatment of approval of participants, when such a need is;
failing measures to obtain information that is important for the transaction (for example, it is not verified or information about the Contractor is not clarified if the nature of the work requires it);
making decisions about the transaction without taking into account the information known to him;
fake, loss, theft of documents of society, etc.

In such situations, the participant has the right to submit to the head for a claim for damage caused. If the director proves that in the process of work was limited by orders or demands of the owner, as a result of which the business was unprofitable, the responsibility from it is removed.

And how to be if the manager is the owner? In this case, it will not be possible to refer to the unfair workman. The presence of outstanding debts obliges the sole executive body to take all measures to their repayment, even if the owner is the only one, and at first glance, does not infringe against his actions.

In this sense, the definition of the Arbitration Court of the Jewish Autonomous Region dated July 22, 2014 in case No. A16-1209 / 2013, according to which 4.5 million rubles were recovered from the founder. Having a firm that has been engaged in heat and water and water supply, in the competition for the right to lease of communal infrastructure objects, he stated a new company with the same name. As a result, the former Jurlso was left without the possibility of providing services, therefore did not pay off the amount of the previously received loan. The court acknowledged that non-payments are caused by the owner's actions and ordered to pay a loan from personal funds.

Tax debts

The Federal Tax Service of Russia is proud of the high collaboration of taxes in the treasury. We will not discuss the legitimacy of the methods of work of tax authorities, simply recognize that there are bad jokes with them. This with private lenders can be an agreement on the write-off part of the debt or restructuring of payments, and the amount of debt will already be critical with the critical budget will be more than 300,000 rubles.

The responsibility of the founder on the debts of a legal entity before the state is also registered in the law.

Article 49 of the Tax Code of the Russian Federation: "If the funds are eliminated by the Organization, it is not enough to perform the fulfillment of the obligation to pay taxes and fees, penalties and fines, the remaining debt must be repaid by the participants of the specified organization."

If the amount of tax debt exceeds 300,000 rubles, and the repayment period for more than 3 months, the organization is in the risk area. It is necessary to take all measures to pay debt or declare recognition of bankrupt LLC, otherwise it will make the tax inspectorate, but demanding to recognize the guilty supervisors and / or founders.

Attempts to derive assets from the organization not to pay for inconsistencies in tax, too, will not lead to anything good. For example, in the case No. A07-7955 / 2009, the Arbitration Court of the Republic of Bashkortostan attracted the founders to subsidiary responsibility under the following circumstances.

Society, having tax debt in the amount of 675 thousand rubles, transferred all its assets to another organization created by these individuals. Participants believed that in the absence of funds to pay the tax and recognition of the Company, the obligations of a legal entity are terminated. However, the tax inspectorate, submitting a lawsuit, proved the guilt of the company's owners in the formation of arrears and recovered debt from their personal funds.

Of course, to attract the founder of LLC on the debts of his company more complicated and longer than an individual entrepreneur, because the bankruptcy procedure is sufficiently long. However, since 2015, tax inspectors have appeared another tool for recovery - in the framework of the initiation of a criminal case under Article 199 of the Criminal Code of the Russian Federation.

So, in the definition of the Armed Forces of the Russian Federation of January 27, 2015 No. 81-kg14-19, the court pleaded by the leader and the only owner for non-payment of VAT in a major amount and confirmed the legality of recovery from an individual to the state in the amount of non-taxable tax. This decision, in fact, was a judicial precedent, after which all such cases are considered easier and faster. The founder, except for the obligation of the debt payment, also receives a criminal record.

Prosecution procedure

From what moment is the responsibility of the founder for the activities of LLC? As we have talked above, this is possible only in the process of bankruptcy of a legal entity. If the organization simply ceases to exist, honestly by paying with all creditors in the process, then there can be no complaints about the owner.

The law of 10.26.02 No. 127-FZ is worth protecting the interests of the budget and other creditors "On the insolvency (bankruptcy)", the provisions of which are valid in 2019. It provides in detail the procedure for holding bankruptcy and attracting managers and owners of the company, as well as persons controlling the debtor.

Under the latter, they mean persons who, although they are not formally owned by the owners, but had the opportunity to instruct the manager or participants in the company to act in a certain way. For example, one of the most impressive amounts in the case of attracting subsidiary responsibility (6.4 billion rubles) is recovered just with the controlling debtor of a person who did not enter the company and formally did not supervise it (Resolution of the 17th Arbitration Court of Appeal in the case No. A60-1260 / 2009).

To apply for the recognition of the legal entity, the debtor must leader, but if he does not do this, then the right to start the bankruptcy procedure has workers, counterparties, tax authorities. At the same time, the party submitted the claim, assigns the selected arbitration manager, and this is of particular importance in attracting the owner to the obligations of LLC.

In addition, to increase the competitive mass, the plaintiff has the right to challenge the transactions committed during the year before the adoption of a statement on the recognition of the debtor bankrupt. In the case when the transaction was performed at the prices below the market, the challenge is increasing to three years.

In the process of consideration of the case of insolvency to legal proceedings, the director, business owner, a beneficiary. If the court recognizes the relationship between the actions of these individuals and non-payments, then the recovery in the amount of the claims claimant is imposed on personal property.

What conclusions can be drawing from all this:

The participant's responsibility is not limited to the size of the share in the authorized capital, and may be unlimited, and is expensive at the expense of personal property. Establish LLC only to avoid financial risks, there is no particular sense.
If the enterprise is managing the hired manager, pride such an internal reporting order that allows you to have a complete picture of the state of affairs in business.
Accounting reports should be under strict control, loss or distortion of documents - a special risk factor indicating intentional bankruptcy.
Lenders have the right to demand the recovery of debts from the owner itself, if a legal entity is in the process of bankruptcy and is not able to respond in its obligations.
Attract the owner of the enterprise to pay debt on business more complicated than an individual entrepreneur, however, since 2009, the number of such cases is calculated by thousands.
Lenders must prove the relationship between the financial failure of the Company and the actions / inaction of the participant, but in some situations there is a presumption of his guilt, i.e. Proving is not required.
The conclusion of assets from the firm on the eve of bankruptcy is a significant risk of improving criminal liability.
The procedure of bankruptcy is better to initiate himself, but it is necessary to do this only with the involvement of narrow-profile lawyers, with the positive experience of such cases.

If the founder only has a share in the authorized capital of the Company and no longer participates in its management, he still has duties. According to Article 16 of the Federal Law "On Limited Liability Societies", he, together with other founders, is obliged to make the remaining part of the authorized capital within a year after registration of LLC, in the event that only half has been made before registration.

Each founder, in addition, is responsible for the establishment of the Company before it was registered. The joint responsibility of all founders is envisaged in accordance with Article 11 of the same Federal District for the obligations provided for, for example, contracts for or to provide consultations.

The responsibility of the founders, if it is stipulated in the Company's Charter, is also to manage its activities by making decisions in general meetings of participants. Therefore, the founder is responsible for this activity and, it means, it is obliged to realize it and adequately evaluate all the decisions taken when voting. He is obliged to vote against those decisions that considers wrong or refuse in these cases from voting at all. In addition, the responsibility of the founders is non-disclosure of commercial and confidential information related to the activities of the organization.

At any or someone, additional duties may also be assigned to one of the founders (Article 9). This should be fixed in the Charter of the Company.

Responsibilities of the head of LLC

The duties and powers of the head or director of the LLC are formed on the residual principle - its competence includes the solution of those issues that the Law on LLC and the Charter do not refer to the powers of other bodies of the Society and Audit Commission of the Company. Responsibilities and authority should be listed in the section of the Charter or Regulations on the head of the Company, in these documents should also be indicated which transactions and solutions it can conclude and be taken independently, and which only approve or perform with.

But the head of the LLC does not have the right to issue orders to be carried out by founders or such that infringe on their interests.

Usually the implementation of the overall coordination of the actions of the administrative and management apparatus. He may also act without a power of attorney on behalf of this enterprise, to submit its interests, issue orders and give orders, which are mandatory to fulfill all employees.

"One in the field is not a warrior" - this folk wisdom is fully applicable for business environment. Where the forces of one person will not be enough, several people can calmly achieve their goals.

Therefore, most legal entities are a different scale and internal architecture of the unification of individuals, or simply citizens.

From the position of legislation, such a citizen participant in a legal entity is a founder (Fondateur, Promoter, Grinder).

Definition of the concept of "founders" of a legal entity

The status of the founders of various forms of JUR organization. Persons have their own specifics. The most characteristic points will consider on the example of a limited liability company (abbreviated - ooo).

For Russia, such an organizational and legal form of commercial organizations is familiar - it is common due to the convenience and simplicity. This union of several subjects in order to use their resources and opportunities, making joint efforts towards receiving commercial benefits.

The founder can act as a physical and legal entity, including non-residents (there are restrictions on the participation of participation and activities of LLC, for example, the media).

The legislation of the Russian Federation is clearly defined by the "founder" does not give, but describes its rights and obligations. The concept is applicable only during the establishment of LLC, then the identity term "participant" is more often used.

The fact of the recognition of the face by the founder of LLC has considerable practical importance.
According to the legislation of a number of countries, it carries not only the property, but even criminal responsibility for the results of the company's activities.

Basic and Advanced Rights

Federal Law No. 14 "On State. registration of JUR. Persons and individual entrepreneurs "to an integral (main) Rights of the Participant (founder) of a legal entity consider:

the distribution of the profit obtained in the process;
obtaining comprehensive and reliable information about all directions of the company;
access to its documentation, including accounting and tax reports;
adoption of management decisions regarding the work of the enterprise;
sale owned by the share co-founders or a third party (the charter may prohibit it);
come out of the founders through the alienation of their share in society;
get the resulting part of the Property of JUR. Persons (in case of its liquidation).

The founder can expand the rights by fixing them in the charter or in the constituent contract of society.

Expansion of rights It can be carried out by a unanimous decision of the General Meeting of the founders.
Restriction of additional rights - Not less than two thirds of votes and only if the participant limited to the Rights also votes "for".

It is especially careful to learn the powers of the management authorities (especially - the owners of the small share of the authorized capital). For example, the right to conclude transactions for large sums with the consent of the founders owning a total of more than 60% UV, can put the owner of 20% of UV before the company's receipt (represented by the Director, with the consent of the remaining founders) of the bondage bank loan threatening business bankruptcy.

What are the responsibilities of the founder

Where there are rights - there are also obligations, and the founder they are as follows:

to make a certain share in the charter capital;
do not disseminate information about the economic activity of the Company (both commercial and general nature), while maintaining confidentiality.

It is possible to expand this list by the decision of the general meeting of the founders - but solely with the written consent of the participant on which these responsibilities are invited to be entrusted.

In the legislation of the Russian Federation there is no clear definition of the concept of "founder".

What is his responsibility

Participants are not fully responsible for all obligations of a limited liability company.. The risk of losses associated with the activities of the Company is carried in the amount of fractions belonging to each of them.

In practice, this means that even with the most crushing financial failure, the founder of society risks only its originally invested property.

Attract the participant to the company's debt payment is still possible - through the mechanisms of subsidiary responsibility.