When a legal entity is at the stage of liquidation, it must settle its debts. In such situations, of course, the founders dream of getting rid of the enterprise as soon as possible. However, there is a certain procedure for carrying out such a procedure, which provides for a series of actions. One of them is the publication of liquidation and notification of creditors. The latter, in turn, cannot remain indifferent. A creditor's claim is submitted upon liquidation, a sample of which we will consider below.
Liquidation of an enterprise and its types
Such a decision is reached when the company is not profitable, and its further existence seems meaningless. An enterprise may be liquidated voluntarily, by court order or by declaring it bankrupt.
The first option is implemented when the founders themselves want to close the company. The second option usually begins with a court decision. For example, in the constituent documents errors were made that were not eliminated.
Bankruptcy may become a continuation of voluntary liquidation in the event that in its process it became clear that the organization is not able to satisfy the entire register of creditors' claims. Consider how these operations are carried out.
Voluntary liquidation
This procedure begins with a decision at the general meeting. If the issue of liquidation was voted positively for discussion, then a liquidator or a liquidation commission is created (in large companies), and this fact is recorded in the minutes of the meeting. Next, a liquidation order is created. In addition to the reasons for such a decision, the order should reflect information on the composition of the liquidation commission. From the moment the document is published, its representatives receive certain responsibilities. Employees of the enterprise are dismissed and paid with them.
Basic liquidation procedure
Further actions are to notify the tax authority. It is necessary to send decisions on liquidation, its procedure and the creation of a commission. In response, within five working days a sheet is issued with a note stating that the enterprise is at the stage of liquidation. After that, constituent documents can no longer be changed in any way. A written appeal about the decision to liquidate the enterprise must be sent to the tax within 3 days, or the organization will have to pay a fine.
Publication and notification of creditors
After the tax authorities conducted an audit, and the organization received a document stating that there were no complaints from the tax authority, the liquidation commission publishes the decision on liquidation in the "State Registration Bulletin". The information should reflect the time frame for accepting claims from creditors, data on the liquidator or liquidation commission, and other information on the case.
The commission draws up a list of creditors, and each of them is notified that the company ceases to function. Then the lenders, for their part, can make claims against the organization. At this time, a property inventory and assessment is carried out. The written request of the creditor upon liquidation is accepted. A sample of payables is considered, after which it is decided whether to pay according to requirements or reject them.
Interim and final liquidation balance sheets
An interim balance sheet is drawn up only when the deadline for accepting claims from creditors has expired. The document should contain information about the property after collection and repayment of debts. The balance is sent to the registration authority along with a copy of the document on payment for the publication of information on liquidation in the Bulletin, as well as the balance sheet approval protocol and the list of creditor claims.
After checking the tax authorities begin to make settlements with creditors. If necessary, a priority is drawn up. If there is insufficient cash to pay, then they will sell the property. The final liquidation balance sheet is drawn up after all creditor claims have been satisfied and disputed issues settled. The remaining property is distributed among the participants, after which an act is drawn up with the signatures of both the liquidation commission and the participants who received the property.
Final stage
After that, documents for termination of activity are sent to the registration authority. They include:
- registration card;
- registration certificate;
- constituent documents;
- final liquidation balance sheet;
- a certificate from the Pension Fund that the organization has no debts;
- audit report on fidelity of balance;
- notarized signatures of members of the commission on the liquidation of the enterprise.
If there are no claims to the package of documents in the tax authority, then an entry is made in the USRLE on the termination of the legal entity. Constituent documents are stamped with the entry “invalid due to liquidation” and issued to representatives of the liquidation commission. A certificate of liquidation is issued at the Registration Chamber, a copy of which is sent to the tax and other state bodies so that the company is completely deregistered.
Bankruptcy
This procedure is an extreme measure when the company is liquidated due to the fact that its debts were not paid. A launched procedure can lead to both the restoration of solvency and liquidation. A bankrupt enterprise is considered to be such when it does not fulfill obligations within 3 months.
Legal relations are regulated by the Law on Insolvency. In accordance with it, the debtor himself, the bankruptcy creditor or the authorized body, the bankruptcy petition is sent to the arbitration court. It indicates information about the organization, a list of creditors and the amount of obligations.
Data on debts owed to employees, the obligation to compensate non- pecuniary damage, all payments on labor relations should also be reflected.
Separately designated payments to government agencies. Upon accepting the application, the court appoints an interim trustee. The latter carries out its activities under judicial control independently or jointly with the head of the organization. Liquidation is carried out after the bankruptcy proceedings were opened. Then a list of creditors is formed. The manager periodically informs creditors about his activities. During the period of bankruptcy proceedings, property transactions are prohibited, the execution time is considered to have arrived.
Alternative ways
Before you liquidate an LLC or other form of organization, you should think carefully. In some cases, companies can help out other ways, such as reorganization. Such an action involves the transfer of all obligations from the company to the assignee. Reorganization can be carried out in the form of a merger, accession or transformation.
A merger is a business combination, after which a new enterprise is created. Joining involves the acquisition of a liquidating company by another organization. Then the latter acquires a controlling stake. And transformation means transforming a company from one type to another. For example, a production cooperative may turn into an AO. Then all obligations, naturally, will be transferred to the new legal entity.
Once popular was the liquidation through the sale of the company to dummies. However, such actions are followed by criminal liability. Today, the sale of the company is possible through its liquidation through an offshore organization. The company will then cease operations due to a change in its members. First, a non-resident company is introduced into the number of participants, after which the owner is removed from the participants of the liquidated organization due to the alienation of its share. The CEO closes the current account, and the owner is now a foreign investor. At the end, the directors are dismissed and make the necessary changes to the Charter.
Protecting creditor rights
As it now becomes clear, the creditor’s claim for liquidation, a sample of which you can see below, should be submitted to the liquidator or the liquidation commission, depending on who was appointed. We know that in the Bulletin information on liquidation must be published for at least two months. In addition, the legal entity notifies well-known lenders. However, the latter is not always carried out, as some experts believe that a two-month publication is a notice. Therefore, in order to protect your creditor rights, you need to be alert and follow the publications.
As soon as it was noticed that the company is being liquidated, the creditor must declare its claims in writing to the liquidator. If it becomes clear that the latter evades consideration of the claims or refuses to satisfy them, then the creditor has the right to file a lawsuit against the legal entity before the liquidation balance sheet is approved.
Money to creditors begins to be paid from the moment the interim liquidation balance sheet is approved. There is such a thing as a queue of creditors' claims (we will dwell on this below). Creditors of the fourth stage of payments begin to be made only a month after the approval of the balance sheet.
If the claims are submitted after the deadline set for this by the liquidator, they will be satisfied with the property that will remain after the satisfaction of those claims that were submitted at the appointed time.
It turns out that meeting deadlines is very important in this case, since otherwise the liquidator may refuse to satisfy the requirements. If the claims are justified, but the liquidator shies away from the obligation to add them to the register of creditors, then there is always the right to go to court.
Priority of claim
Upon liquidation, the claims of creditors are satisfied in a certain order. The priority is formed in accordance with Section 134 of the Bankruptcy Law. According to him there are four lines.
- First of all, payment awaits individuals who are responsible for causing harm to their health or life. This also includes the costs of non-pecuniary damage, compensation for harmful acts and so on. So, for example, the injured party in an accident is included in this group, where the organization that formalizes the liquidation procedure or went into bankruptcy was found guilty.
- Secondly, benefits will be paid, remuneration for labor and civil law contracts, remuneration for copyright contracts. In the process of liquidation, contracts may be terminated, or employees will be reduced. Therefore, at this stage, all compensation and benefits must be paid in full.
- The third stage is paid off on budgetary and extra-budgetary stock debts, obligations secured by property collateral are satisfied within the funds received from the sale of property.
- The remaining lenders are equated to the fourth stage.
Art. 64 Civil Code
According to this article, the claims of creditors are executed in turn. It turns out that payments of the second stage can be made only after the funds have been paid to the creditors who go in the first place. True, there are exceptions. For example (under Art. 64 of the Civil Code of the Russian Federation), these are organizations that belong to the third stage and have provided funds secured by property. If there is not enough money for the full payment of the company, in this case the debt can be repaid by property in the fourth order.
Creditors of the first and second stages have the main right to property collateral, because their right appeared even before the conclusion of the contract. If there is not enough money or pledged property in order to pay debts, then the remaining debt is distributed to all organizations that have provided a loan in any way. This rule applies if no others are found.
Let's look at the lender's claim for liquidation. A sample document is presented below.
Bankruptcy actions of the creditor
If in the process of liquidation it is discovered that the company is unable to pay debts to all creditors, then it is considered that the company is bankrupt. The liquidator is obliged to submit an appropriate application. But often he shies away from this duty. Therefore, it is worth bearing in mind the cases when the creditor may file bankruptcy petition with the court. These reasons are:
- information on persistent insolvency of the debtor;
- failure to perform enforcement within three months, if it turns out that the debtor does not have the property necessary to satisfy the stated requirements.
Together with the application, the creditor is required to attach a number of documents that would confirm the insolvency of the debtor. For example, an act of a bailiff stating that it is not possible to recover funds, documents returned from the bank unpaid, certificates stating that there are no funds in the debtor's account, correspondence of the creditor about the need to fulfill obligations under the contract, and other securities.
Conclusion
Thus, liquidation takes place and the claims of creditors are satisfied. It is noteworthy that before liquidating the LLC, JSC and other forms, it is worth exploring other alternative ways. Perhaps they will turn out to be “bloodless” and will help to get out of the business in such a way that both founders and creditors will be much more profitable.