The liquidation of a company is a complex, risky process associated with a large number of nuances. Most of them needs to be foreseen even before the start of this process. But often this is a necessary procedure, especially in cases when the company is a legal entity with foreign participation.
We talked with Lyubov Kuznetsova, an expert in business legal support and head of Acsour's legal department, and discussed how to properly liquidate a company, what stages you need to go through and how to avoid negative consequences.
BUSINESS LIQUIDATION 2023: IMPLICATIONS OF GLOBAL CHANGE
Under the current restrictions, many foreign companies and businesses with foreign participation decide to stop their activities in the territory of the Russian Federation.
There are several options in this case: the sale of a company or a share in a legal entity, the bankruptcy of the company and the liquidation of the legal entity.
At the moment, there are a number of restrictions of the legislation of the Russian Federation on the withdrawal of foreign capital. First of all, it is the need to obtain permission to conduct a transaction from the government commission for the control of foreign investment and the mandatory payment of a contribution to the Russian budget when selling assets by representatives of "unfriendly" countries. This is why business owners are increasingly making the decision to liquidate.
THE DECISION IS MADE: THE FIRST STEPS IN THE PROCESS OF COMPANY’S LIQUIDATION
The liquidation procedure can be divided into several stages:
Each of these stages includes several nuances.
Lyubov Kuznetsova notes that it is recommended to carry out pre-liquidation activities before the start of liquidation process. It includes:
It is recommended to release the company as much as possible from any kind of obligations and carefully evaluate the existing assets before starting the liquidation procedure. The liquidation procedure is a lengthy and laborious process. If at the stage of settling with creditors, suppliers and employees it turns out that the available funds are not enough, bankruptcy proceedings will have to be launched.
The decision on liquidation must be taken unanimously by all participants of the legal entity.
The next step is to determine the person responsible for the liquidation procedure.
LIQUIDATION PROCEDURE: WHO IS RESPONSIBLE
The norms of the law determine that the liquidation procedure is carried out by the liquidator or the liquidation commission.
Lyubov Kuznetsova, head of Acsour’s legal department:
“After a decision to liquidate a legal entity is made, a body or person that will carry out liquidation activities and be responsible for ensuring that all stages are carried out in accordance with the norms of the law must be identified. It can be any individual, legal entity or group of individuals, the law does not regulate any requirements. However, it better to make responsible for the process an experienced specialist, since if any violations in the Federal Tax Service are detected at the final stage, the entire procedure will have to be started over again. Also, it is necessary to prepare interim and final liquidation balance sheets. This task should be entrusted to an accountant with similar experience, as it requires knowledge of changes in legislation, experience in making the necessary calculations, and so on. In addition, an accountant with similar experience knows and is able to work with the requirements of the Federal Tax Service, if necessary, clarifications on the data provided”.
If a liquidation commission is established, all members of the liquidation commission should be responsible for carrying out the procedure. If it is decided to entrust the procedure to a third-party organization, it is recommended to find a contractor for this task in advance, before the decision is made, because from this moment the countdown of the timing of activities begins. The first of them: filing a notice of the beginning of the liquidation procedure with the tax authority. Moreover, this must be done within three days. Also, this party is responsible for submitting information for publication on the liquidation of a legal entity.
THE COMPANY TERMINATES AN ACTIVITY: WHAT ABOUT THE EMPLOYEES?
If labor contracts with employees have not been terminated before the beginning of the liquidation procedure, the company must perform the following actions:
Lyubov Kuznetsova: “All procedures related to the obligations of the organization during the liquidation, including to employees, require careful attention not only to the timing and forms of notifications, but also to the difficulties that arise in the process of dismissal. This does not always go smoothly, and if violations are revealed, this may affect the timing of the liquidation procedure, which is strictly regulated. In situations that affect compliance with this rule, the postponement is possible only when applying to the court. Otherwise, registration of the liquidation of a legal entity may be refused and the procedure can be started over again only after 6 months”.
What can be done to reduce the risks of layoffs? Lyubov advises starting preparations even before the decision to liquidate a legal entity is made. In this case, it is possible to conclude an agreement on the termination of labor contract between the company and the employee. Also, it gives you time to turn to a mediator who will help to communicate correctly and organize the entire process of signing such agreements if any problems arise. At the same time, if such agreements are signed before the start of liquidation, then it is not required to notify the Social Insurance Fund, the employment service, the trade union, which greatly simplifies the procedure for terminating the company.
PAY BACK: SETTLEMENTS WITH CREDITORS
There is a legislative norm: creditors have the right to file a claim for reimbursement of funds for the obligations of a liquidated company within 2 months from the date of publication of the notice in the State Registration Bulletin.
However, in order to reduce the risk of litigation, it is recommended that:
Settlements with creditors are carried out in a certain order:
The liquidator or members of the liquidation commission should have subsidiary responsibility for keeping track of the funds necessary for the implementation of all settlements.
COMPLETION
If all the stages were successful, all the deadlines were met, the documents were prepared without errors, in accordance with applicable standards, all the obligations of the organization were fulfilled, it is time to submit the documents to the Federal Tax Service for state registration of the termination of the legal entity.
The tax authorities may decide not to liquidate company, then all stages will have to be started anew, but not earlier than after 6 months.
If a positive decision is made by the Federal Tax Service and the procedure is successfully completed, the liquidation of the legal entity is considered completed from the moment information on the termination of activities is entered in the Unified State Register of Legal Entities.
Also, please note that even after liquidation, the company is obliged to keep documents that have not yet expired. Personnel, accounting, tax, constituent, statistical documents are subject to storage.
In this regard, a number of documents are subject to delivery to state and commercial archives after the end of the liquidation procedure. Responsibility for storage rests with the liquidator or members of the liquidation commission.
We talked with Lyubov Kuznetsova, an expert in business legal support and head of Acsour's legal department, and discussed how to properly liquidate a company, what stages you need to go through and how to avoid negative consequences.
BUSINESS LIQUIDATION 2023: IMPLICATIONS OF GLOBAL CHANGE
Under the current restrictions, many foreign companies and businesses with foreign participation decide to stop their activities in the territory of the Russian Federation.
There are several options in this case: the sale of a company or a share in a legal entity, the bankruptcy of the company and the liquidation of the legal entity.
At the moment, there are a number of restrictions of the legislation of the Russian Federation on the withdrawal of foreign capital. First of all, it is the need to obtain permission to conduct a transaction from the government commission for the control of foreign investment and the mandatory payment of a contribution to the Russian budget when selling assets by representatives of "unfriendly" countries. This is why business owners are increasingly making the decision to liquidate.
THE DECISION IS MADE: THE FIRST STEPS IN THE PROCESS OF COMPANY’S LIQUIDATION
The liquidation procedure can be divided into several stages:
- Making a decision on the liquidation by the participants of a legal entity, including the formation of a liquidation commission or the appointment of a liquidator, publication of information on liquidation in the Bulletin of State Registration and the Federal Resource;
- Approval of the interim liquidation balance sheet and settlements with creditors;
- Approval of the liquidation balance sheet and state liquidation of a legal entity
Each of these stages includes several nuances.
Lyubov Kuznetsova notes that it is recommended to carry out pre-liquidation activities before the start of liquidation process. It includes:
- determination of funds required for settlements with creditors;
- assessment of the company's assets required for the liquidation process;
- termination of contracts with counterparties, except for those necessary for liquidation (such as a lease agreement, outsourcing agreement);
- termination of labor relations with employees.
It is recommended to release the company as much as possible from any kind of obligations and carefully evaluate the existing assets before starting the liquidation procedure. The liquidation procedure is a lengthy and laborious process. If at the stage of settling with creditors, suppliers and employees it turns out that the available funds are not enough, bankruptcy proceedings will have to be launched.
The decision on liquidation must be taken unanimously by all participants of the legal entity.
The next step is to determine the person responsible for the liquidation procedure.
LIQUIDATION PROCEDURE: WHO IS RESPONSIBLE
The norms of the law determine that the liquidation procedure is carried out by the liquidator or the liquidation commission.
Lyubov Kuznetsova, head of Acsour’s legal department:
“After a decision to liquidate a legal entity is made, a body or person that will carry out liquidation activities and be responsible for ensuring that all stages are carried out in accordance with the norms of the law must be identified. It can be any individual, legal entity or group of individuals, the law does not regulate any requirements. However, it better to make responsible for the process an experienced specialist, since if any violations in the Federal Tax Service are detected at the final stage, the entire procedure will have to be started over again. Also, it is necessary to prepare interim and final liquidation balance sheets. This task should be entrusted to an accountant with similar experience, as it requires knowledge of changes in legislation, experience in making the necessary calculations, and so on. In addition, an accountant with similar experience knows and is able to work with the requirements of the Federal Tax Service, if necessary, clarifications on the data provided”.
If a liquidation commission is established, all members of the liquidation commission should be responsible for carrying out the procedure. If it is decided to entrust the procedure to a third-party organization, it is recommended to find a contractor for this task in advance, before the decision is made, because from this moment the countdown of the timing of activities begins. The first of them: filing a notice of the beginning of the liquidation procedure with the tax authority. Moreover, this must be done within three days. Also, this party is responsible for submitting information for publication on the liquidation of a legal entity.
THE COMPANY TERMINATES AN ACTIVITY: WHAT ABOUT THE EMPLOYEES?
If labor contracts with employees have not been terminated before the beginning of the liquidation procedure, the company must perform the following actions:
- Notify employees who will be relieved of their duties (and in case of liquidation, all employees) in the prescribed manner and within a certain period of time.
- Notify the employment service about the released personnel. It is necessary to notify the employment service in the prescribed form at least once. In the event of a mass layoff, you need to do this twice.
- Information about the termination of certain payments must be transferred to the Social Insurance Fund.
- Pay the required compensation to the employee (salary, compensation for unused days of annual leave, severance pay in the amount of average monthly earnings, and others).
Lyubov Kuznetsova: “All procedures related to the obligations of the organization during the liquidation, including to employees, require careful attention not only to the timing and forms of notifications, but also to the difficulties that arise in the process of dismissal. This does not always go smoothly, and if violations are revealed, this may affect the timing of the liquidation procedure, which is strictly regulated. In situations that affect compliance with this rule, the postponement is possible only when applying to the court. Otherwise, registration of the liquidation of a legal entity may be refused and the procedure can be started over again only after 6 months”.
What can be done to reduce the risks of layoffs? Lyubov advises starting preparations even before the decision to liquidate a legal entity is made. In this case, it is possible to conclude an agreement on the termination of labor contract between the company and the employee. Also, it gives you time to turn to a mediator who will help to communicate correctly and organize the entire process of signing such agreements if any problems arise. At the same time, if such agreements are signed before the start of liquidation, then it is not required to notify the Social Insurance Fund, the employment service, the trade union, which greatly simplifies the procedure for terminating the company.
PAY BACK: SETTLEMENTS WITH CREDITORS
There is a legislative norm: creditors have the right to file a claim for reimbursement of funds for the obligations of a liquidated company within 2 months from the date of publication of the notice in the State Registration Bulletin.
However, in order to reduce the risk of litigation, it is recommended that:
- evaluate the sufficiency of the company's assets to pay all liabilities before the commencement of the liquidation procedure and draw up a liquidation balance sheet;
- make all settlements with creditors without waiting for claims.
Settlements with creditors are carried out in a certain order:
- 1st priority - satisfaction of claims for compensation for harm to life and health of citizens;
- 2nd priority – payment of wages, severance pay and other income to employees;
- 3rd turn – payments to the budget and extra-budgetary funds;
- 4th stage - settlements with other creditors.
The liquidator or members of the liquidation commission should have subsidiary responsibility for keeping track of the funds necessary for the implementation of all settlements.
COMPLETION
If all the stages were successful, all the deadlines were met, the documents were prepared without errors, in accordance with applicable standards, all the obligations of the organization were fulfilled, it is time to submit the documents to the Federal Tax Service for state registration of the termination of the legal entity.
The tax authorities may decide not to liquidate company, then all stages will have to be started anew, but not earlier than after 6 months.
If a positive decision is made by the Federal Tax Service and the procedure is successfully completed, the liquidation of the legal entity is considered completed from the moment information on the termination of activities is entered in the Unified State Register of Legal Entities.
Also, please note that even after liquidation, the company is obliged to keep documents that have not yet expired. Personnel, accounting, tax, constituent, statistical documents are subject to storage.
In this regard, a number of documents are subject to delivery to state and commercial archives after the end of the liquidation procedure. Responsibility for storage rests with the liquidator or members of the liquidation commission.
