Deliberate bankruptcy by an unscrupulous debtor
Article 6 of the Law provides for the liability of the founder (participant) and (or) an official for intentional bankruptcy, who must be found guilty of intentional bankruptcy through administrative or criminal proceedings.
Such liability may be subsidiary or joint (for two or more persons).
Claims for bringing such persons to justice and collecting amounts may be filed both during the bankruptcy procedure and after its completion, within ten working days from the date of entry into force of the judicial act.
An analysis of judicial practice shows that cases of debtors going to court with tax arrears resulting from their engaging in false entrepreneurial activities, namely, issuing fictitious invoices or settlements with business entities whose registration/re-registration was declared invalid due to violations of the law, have become more frequent.
Declaring a debtor bankrupt does not entail issuing tax notices to counterparties, which, accordingly, affects the economic security of the country.
When considering such cases, the question arises whether the court should give a legal assessment of the causes of the specified debt and whether declaring such a debtor bankrupt would help the debtor avoid liability before the law.
As practice shows, in case of unfair actions of the debtor and his officials, it is impossible to obtain financial information about the results of his activities. The tax authorities do not always have proper information. There are no sources of information for analysis that can serve as the basis for making financial and economic decisions. At the same time, formal legal actions are carried out without proper economic justification.
It may be necessary to provide for the liability of property owners, founders (participants), and the executive body of legal entities to creditors if the legal entity has insufficient funds, without bringing them to administrative or criminal responsibility if their actions (inaction) show signs of bringing the legal entity to bankruptcy.
There are cases when tax and other accounts payable are formed as a result of a long-term failure by the debtor to fulfill obligations to creditors, while during this period the company receives income from financial and economic activities, from which the specified debt is formed.
After the bankruptcy procedure is completed and the bankrupt is released from the outstanding accounts payable, the company is excluded from the register of legal entities. After that, the former founders (participants) create a new legal entity, where business activity begins anew, while they do not bear any responsibility for the entrepreneurial activity that led to the bankruptcy of their previous enterprise.
Offers:
- Develop and adopt standards on the issues under consideration;
- establish a system of criteria for the proper performance of managers to identify management actions that led the company to bankruptcy;
- to oblige the tax authorities to distinguish between the tax arrears incurred by taxpayers and to prohibit the initiation of bankruptcy in the presence of debts incurred as a result of illegal business activities, providing such an opportunity after bringing such a debtor to criminal responsibility.
Summary of judicial practice in the application of legislation on rehabilitation and bankruptcy in cases considered by the courts for the period 2020-2021 and the 1st half of 2022.
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