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Прайм Лигал / Публикации в СМИ / Debts of enterprises will be collected from employees
опубликовано:

Debts of enterprises will be collected from employees

The Supreme Court of the Russian Federation passed a verdict that could seriously change the responsibility of company employees. With them, the debts of the organization may be recovered. Previously, this rule was legislatively fixed, but in practice it was practically not applied.

Employers compensate employees for vacation costs within the country. Russian legislation allows in the event that the company has allowed debts, for example, for taxes, to recover budgeted funds from the chief accountant, if it is proved his fault.

Previously, attempts to blame employees were not supported in the courts.  The state authorities have repeatedly attempted to recover debts from responsible officials, but the courts held the position that the responsibility for harm caused by employees is borne by the organization , Prime ligue » Arik Shabanov . –  In exceptional cases, subsidiary responsibility for actions of officials could be assigned to responsible persons . However, this norm has not been widely applied by law enforcement agencies.

Photo: depositphotos.com

By the decision of the Civil Code of the Supreme Court of the Russian Federation of January 27, 2015, No. 81KG1419, the court overturned earlier judicial acts in the case of refusal to recover from the defendant in favor of the Russian Federation material damage in the form of unpaid value-added tax and sent the case to a new one examination. The judges of the RF Armed Forces adopted such a decision, since the failure to pay tax by a legal entity through the fault of the defendant is damage caused to the budget of the Russian Federation, which by law can be recovered at the expense of the guilty person.

The decision can set the tone for a new law enforcement practice. Russian top managers may have to pay taxes to the budget that they did not pay to their company.  There is a high probability that the existence of such a judicial act adopted by the RF Armed Forces can significantly increase the number of similar decisions taken by lower courts , – believes Arik Shabanov.

The judicial system of the Russian Federation is not formally a precedent, however the lower courts are guided by the decisions of the higher ones.  This is due to the fact that when appealing the judicial acts of the lower courts they will in any case be considered higher. Therefore, although the decision of a higher authority is not binding, it is taken as a basis, as an example of law enforcement practice , – the expert explains.

What is the secret of high productivity of Japanese employees Tax specialists, in conjunction with the operational divisions of the Ministry of Internal Affairs and the Criminal Code of the Russian Federation, have seriously taken up tax debtors, so now they will increasingly exact the tax directly from the guilty individual, and not from an empty company, explains Oleg Nikulenko , managing partner of the consulting group YUKT . This is due to the fact that it is rare to collect debt directly from the organization.

 If you find any arrears in the course of inspections of the tax service, you can collect the incomplete income to the state budget only through the court , – says lawyer Valery Mikhalat. –  However, by the time the case is under consideration, the main assets that can be levied are practically absent from the company. 

Companies that know about the criminality of their actions, find a lot of options how to escape responsibility.  They think in advance how to minimize losses related to compulsory collection of debts by arresting settlement accounts belonging to the organization, imposing a ban on alienating equipment assets up to their seizure , . –  For this reason, the actual execution of the court decision is delayed for years, or even remains unfulfilled .

As a result, the only persons who can compensate losses to the tax service remain employees of organizations, in particular, its management staff, represented by the director and chief accountant.

We can not say that before the threat of attracting individuals to account for the debts of the organization was not at all.  Tax advisors and tax crime attorneys have always considered the risks of attracting the head of the company to subsidiary responsibility and the risks of collecting damages when convicting under art. 199 of the Criminal Code – tax evasion , – says Oleg Nikulenko.

But it is the year 2015 experts call a turning point for general directors and other entities controlling the organization.

 Firstly, the founders or shareholders began to demand compensation from the directors more and more often, including on the basis of the Resolution of the Plenum of the Supreme Arbitration Court of 2013, “On Certain Issues of Compensation for Losses by Persons Formed by the Bodies of a Legal Entity” q>, – reminds Nikulenko. –  Secondly, managers and other controlling persons are increasingly being attracted by creditors, including tax authorities, to subsidiary liability under the Federal Law on Insolvency (Bankruptcy) . 

In the actions of decision-makers in the organization, they find violations that lead to significant losses. That gives an opportunity for unscrupulous behavior, contrary to the interests of the company, to recover from them losses. This rule applies in the case of major transactions and related-party transactions that led to the ruin of the organization or the infringement of the interests of creditors. However, as a rule, there are no actual penalties in practice.

The perpetrator agrees with the prosecution, pleads guilty, the case is examined in a special order of criminal proceedings, the tax authority does not enter into criminal proceedings with a civil suit.

Now, the attitude to such cases can change and they will stop « rake » in all instances.

Workers will be able to bankrupt firms for wage arrears

It would seem that there is nothing terrible in that the damage that the company brought to the state will be compensated by the individuals who are to blame for this. However, the wide spread of the practice of collecting the company’s debts from individuals can damage employees who were directly unaware of the adoption of unlawful decisions.

So, the employee can perform actions under the pressure of the leadership, which in the end is rather difficult to prove. Along with the owners of the business, the hired management of the organization may be referred to controlling persons.  The published decision of the Supreme Court of the Russian Federation by its nature permits the recovery of the organization’s debts from those individuals who committed the offense, performing official duties , – says Olga Otchertsova. –  The accountant and the director are often employees who do not want to lose their jobs, and as a result are forced to follow the instructions of the founder .

The application of the court decision of the RF Armed Forces will provoke a wave of protests and discontent everywhere, Otchertsova believes. Instead of really guilty persons, the perpetrators will be in the dock.

In addition, arrears of taxes or losses of the company can be very large sums. They may not be so significant for organizations, but completely unaffordable for individuals. The debt of the company runs the risk of being unbearable, even for a leader with a high salary.

Experts note that the appearance of such a decision threatens with additional corruption risks in the bodies of the Ministry of Internal Affairs and the Federal Tax Service. Now the head of the organization can be reminded during the audit that he can personally answer for the misconduct of the enterprise and debts.  This, of course, will worsen the investment climate in our country. In society, the opinion may be formed that the creation of one’s own business is initially a huge risk of criminal responsibility and the possibility of losing personal property , – Valery Mikhalat believes.

Previously, experts noted a significant lack of registration of small businesses in the form of IP – an entrepreneur for business debts meets personal property. Now the border between forms of ownership is practically erased. The debt of the organization can be collected from the head of the legal entity. Only an entrepreneur is responsible for his own mistakes, but the leader risks taking responsibility for the decisions of the owners.

https://rg.ru/gazeta/biznes/2015/09/08.html №1014 (35) 08.09.2015

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