Limited and unlimited liability. The main forms of enterprises (firms)

Second important point, which is fixed in the organizational and legal form of the company is the nature of property liability: unlimited or limited property liability.

Unlimited Property Liability- this is a situation when the risk of fulfilling the obligations assumed by the enterprise falls on all the property of its owner (including personal property. The institution of unlimited property liability was dominant in a market economy until the 20th century.

All property of the business owner within the framework of unlimited property liability (movable and immovable, tangible and intangible) served as a cover for his obligations both in relation to the clientele, and in relation to the state and hired personnel. The excess of the obligations of the entrepreneur over the property (assets) at his disposal meant insolvency, which gave creditors grounds to initiate a formal bankruptcy procedure. After the sale of property under the hammer as a result of bankruptcy, the balance of the debt had to be covered by credible guarantors, otherwise the owner of the enterprise would end up in a debtor's prison. Such a strict legal regime extended to the vast majority economic activity in the 19th - early 20th centuries. All this was inevitable in the context of intuitive business, asymmetric partner relationships, short-term ties and weakness. legal regulation. In such obligations, inevitably, the risk of non-fulfillment by entrepreneurs of their obligations was very high. And unlimited property liability and retaliation state regulation entrepreneurial activities served as a guarantee of the performance of contracts and credit obligations.

Another important mechanism for ensuring the fulfillment of obligations of entrepreneurs to each other was personal and family relations between business partners. Unlimited property liability, strict criminal regulation and clan relationships - all this served as a guarantee of the entrepreneur's integrity and insurance against the entrepreneur's failure to fulfill his obligations.

These features of the regulation of entrepreneurial "honesty" are not only historical facts. To one degree or another, to a greater or lesser extent, they arise in all countries beginning the transition to market economy and operating in an intuitive business environment. Similar phenomena exist in developing countries and in former socialist countries. Even in developed countries, on the periphery of the legal economy, shadow and penumbral forms of business are constantly emerging that have similar mechanisms to reduce entrepreneurial risks.

When choosing a legal form (IP or LLC), the main argument in favor of registering a company is often limited liability legal entity. In this, Russia differs from other countries where a company is created for the sake of partnership, and not because of avoiding financial risks. About 70% of Russian commercial organizations are created by a single founder, who, in most cases, manages the business himself.

Many firms do not really function, not even earning a salary for the director and not differing in profitability from a freelancer who provides services in his spare time. However, legal entities in Russia are registered as often as individual entrepreneurs.

If you want to know in detail how an organization differs from an individual entrepreneur, we advise you to read the article "", and here we will try to dispel the myth that registering a company is the right way to avoid business losses.

Liability of a legal entity

To begin with, let's find out where the confidence comes from that doing business in the form of an LLC is financially safe? Article 56 Civil Code The Russian Federation states that the founder (participant) is not liable for the obligations of the organization, and the organization is not liable for its debts. That is why the question: “What is the responsibility of the founder of an LLC?” the majority answers - only within the limits of a share in an authorized capital.

Indeed, if the company is solvent and pays off to the state, employees and partners on time, then it is impossible to attract the owner to pay the company's bills. The created organization acts in civil circulation as an independent person, and is itself responsible for its own obligations. As a result, a false impression is created of the complete lack of responsibility of the LLC owner to creditors and the budget.

However, the limited liability of the company is valid only as long as the legal entity itself exists. But if the LLC is declared bankrupt, then the participants may be brought to additional or subsidiary liability. True, it is necessary to prove that it was the actions of the participants that led to the financial catastrophe of the company, but after all, creditors who want to return their money will make every effort to do this.

Article 3 of the Law of February 8, 1998 No. 14-FZ: “In the event of insolvency (bankruptcy) of the company through the fault of its participants, the said persons may be held subsidiary liable for its obligations in the event of insufficient property of the company.”

Subsidiary liability is not limited to size authorized capital, and is equal to the amount of debt to creditors. That is, if a bankrupt company owes a million, then it will be recovered from the founder of the LLC in full size, despite the fact that he contributed only 10,000 rubles to the authorized capital.

Thus the concept limited liability within the authorized capital is relevant only to the organization. A participant can be brought to unlimited subsidiary liability, which financially equalizes him with an individual entrepreneur.

Leader and founder in one person

The subsidiary liability of the founder and director of an LLC for the obligations of a legal entity has its own characteristics. In a situation where the organization is managed by an employee CEO, some share of financial risks passes to him. According to Article 44 of the Law "On LLC", the head is liable to the company for losses caused by his guilty actions or inaction.

Liability for debts arises if there are such signs of guilty acts or omissions:

• making a transaction to the detriment of the interests of the enterprise managed by him, based on personal interest;
• hiding information about the details of the transaction or not obtaining the approval of the participants, when such a need exists;
• failure to take measures to obtain information relevant to the transaction (for example, information about the contractor has not been verified or clarified, if the nature of the work requires it);
• making decisions on the transaction without taking into account the information known to him;
• forgery, loss, theft of company documents, etc.

In such situations, the participant has the right to file a claim against the head for compensation for the damage caused. If the director proves that in the process of work he was limited by the orders or requirements of the owner, as a result of which the business became unprofitable, then responsibility is removed from him.

But what if the owner is the manager of the company? In this case, it will not work to refer to an unscrupulous hired manager. The presence of outstanding debts obliges the sole executive agency take all measures to repay them, even if the owner is the only one, and at first glance, no one's interests are infringed by their actions.

Indicative in this sense is the ruling of the Arbitration Court of the Jewish Autonomous Region dated July 22, 2014 in case No. A16-1209/2013, in which 4.5 million rubles were recovered from the founding director. Having a company that has been engaged in heat and water supply for many years, in the competition for the right to lease utility infrastructure facilities, he declared new company with the same title. As a result, the former legal entity was left without the ability to provide services, and therefore did not repay the amount of the previously received loan. The court recognized that the insolvency was caused by the actions of the owner and ordered to repay the loan from personal funds.

Tax debts

The Federal Tax Service of Russia is proud of the high collection of taxes to the treasury. We will not now discuss the legitimacy of the methods of work of the tax authorities, we will simply admit that they are not to be trifled with. It is with private creditors that you can agree on writing off part of the debt or restructuring payments, and with the budget, the amount of debt over 300,000 rubles will be critical.

The responsibility of the founder for the debts of a legal entity to the state is also spelled out in the law.

Article 49 of the Tax Code of the Russian Federation: “If Money liquidated organization is not enough to fully fulfill 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 maturity is more than 3 months, then the organization is at risk. It is necessary to take all measures to pay off the debt or declare the LLC bankrupt, otherwise it will tax office, but already with the requirement to recognize the head and / or founders as guilty.

Attempts to withdraw assets from the organization in order not to pay tax arrears will not lead to anything good either. For example, in case No. A07-7955/2009 court of Arbitration The Republic of Bashkortostan brought the founders to subsidiary liability under the following circumstances.

The company, having a tax debt in the amount of 675 thousand rubles, transferred all its assets to another organization created by the same persons. The participants believed that in the absence of funds to pay tax and the company is declared bankrupt, the obligations of a legal entity cease. However, the tax inspectorate, having filed a lawsuit, proved the guilt of the company's owners in the formation of arrears and collected the debt from their personal funds.

Of course, attracting the founder of an LLC for the debts of his company is more difficult and longer than an individual entrepreneur, because the bankruptcy procedure is quite lengthy. However, since 2015, tax inspectors have had another collection tool - as part of the initiation of a criminal case under article 199 of the Criminal Code of the Russian Federation.

Thus, in the ruling of the Supreme Court of the Russian Federation of January 27, 2015 No. 81-KG14-19, the court found the head and sole owner liable for non-payment of VAT on a large scale and confirmed the legality of recovering damage from an individual to the state in the amount of the unpaid amount of tax. This decision, in fact, has become a judicial precedent, after which all such cases are considered easier and faster. The founder, in addition to the obligation to pay the debt itself, also receives a criminal record.

Liability procedure

From what moment does the founder's responsibility for the activities of the LLC begin? As we said above, this is possible only in the process of bankruptcy of a legal entity. If an organization simply ceases to exist, having honestly paid off all creditors in the process, then there can be no claims against the owner.

The interests of the budget and other creditors are protected by the Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, the provisions of which are also valid in 2019. It details the procedure for conducting bankruptcy and bringing to responsibility the managers and owners of the company, as well as persons controlling the debtor.

The latter refers to persons who, although not formally owners, had the opportunity to instruct the head or members of the company to act in a certain way. For example, one of the most impressive amounts in the case of bringing to subsidiary liability (6.4 billion rubles) was recovered from the controlling debtor of a person who was not part of the company and did not formally manage it (Decree of the 17th Arbitration Court of Appeal in the case No. A60-1260/2009).

The manager must submit an application for recognition of a legal entity as a debtor, but if he does not do this, then employees, counterparties, tax authorities. At the same time, the party that filed the claim appoints the chosen arbitration manager, and this is of particular importance in bringing the owner to the obligations of the LLC.

In addition, in order to increase the bankruptcy estate, the plaintiff has the right to challenge transactions made during the year before the adoption of the application for declaring the debtor bankrupt. In the event that a transaction is made at prices below market prices, the contestation period is extended to three years.

In the process of considering an insolvency case, a director, a business owner, a beneficiary are involved in litigation. If the court recognizes the connection between the actions of these persons and insolvency, then a penalty in the amount of the plaintiff's claims is imposed on personal property.

What conclusions can be drawn from all this:

1. The liability of the participant is not limited to the size of the share in the authorized capital, but may be unlimited, and be repaid at the expense of personal property. Establishing an LLC just to avoid financial risks does not make much sense.
2. If the company is managed by a hired manager, provide for such an internal reporting procedure that allows you to have a complete picture of the state of affairs in the business.
3. Accounting statements must be under strict control, the loss or distortion of documents is a particular risk factor indicating intentional bankruptcy.
4. Creditors have the right to demand the collection of debts from the owner himself if the legal entity is in the process of bankruptcy and is unable to meet its obligations.
5. It is more difficult to attract the owner of an enterprise to pay business debts than an individual entrepreneur, but since 2009 the number of such cases has been in the thousands.
6. Creditors must prove the connection between the financial insolvency of the company and the actions / inaction of the participant, but in some situations there is a presumption of his guilt, i.e. proof is not required.
7. The withdrawal of assets from the company on the eve of bankruptcy is a significant risk of criminal liability.
8. It is better to initiate the bankruptcy procedure yourself, but this should be done only with the involvement of highly specialized lawyers with positive experience in such cases.

Unlimited liabilities, unlimited liability, 45

The trustee bears unlimited property liability for obligations arising from him in connection with the execution of the trust agreement, as well as in cases of damage to the interests of the beneficiary of the trust. The trustee has the right to full reimbursement of the necessary expenses incurred by him related to the exercise of his rights and the fulfillment of obligations arising from the agreement on the establishment of a trust, within the limits of income received by virtue of ownership of the property transferred to him in a trust. He also has the right to receive remuneration in the amount and on the terms established by the contract. The remuneration can be expressed either as a percentage of the income received from the trust, or in a fixed amount, or in the form of a right realized after the termination of the trust establishment agreement - an option to acquire part of the property that it owns by virtue of the existence of the agreement.

Individual entrepreneurs and (or) commercial organizations can be founders and at the same time participants in a general partnership, and the number of participants (general partners) must be at least two. The main feature of this form of business organization is the unlimited joint and several liability of the participants for the obligations of the partnership, in other words, if the property of the partnership is insufficient to pay off the claims of creditors, recovery can be levied on the personal property of general partners.

In a limited partnership, the liability of some partners (limited partners) is allowed solely within the limits of their contribution. The two main requirements for such a partnership are the presence of at least one general (general) partner (carrying unlimited liability for the obligations of the partnership) and the lack of voting rights for limited partners. Profits derived from the economic activities of the partnership are not taxed. After its distribution among partners, it is subject to taxation as the personal income of the owners.

A partnership is like a sole proprietorship in all respects except that in a partnership there is more than one owner. In a general partnership, all partners have unlimited liability. They are jointly liable for the obligations of the partnership. Since one of the partners may bind the partnership with certain obligations, partners should be chosen carefully. In most cases, there is a formal agreement or partnership agreement that defines the powers of each partner, the distribution of profits, the total amount of capital invested by the partners, the procedure for attracting new partners and the procedure for re-registering the partnership in the event of

At the same time, one general trend can be distinguished, an enterprise that has unlimited property liability for obligations to its creditors, as a rule, is associated with insignificant tax liabilities. An example is a full partnership, the participants of which are jointly and severally liable for the debts of the partnership with all their property. According to the current Russian legislation it is not recognized as a payer of corporate income tax, which allows it to avoid double taxation of its profits (which usually occurs when dividends are distributed). In addition, a general partnership created by individuals is entitled to a number of benefits for local taxes, property taxation.

Figure 18-5 compares the possible next year receipts to creditors and shareholders of these two firms. Differences arise only if the value of the assets of one of the firms in the next year will be less than $1,000. Suppose that in the next year the assets of each company will be worth only $500. In this case, the limited liability company will not fulfill its obligations. Its shareholders will leave the firm and their income will be zero. Lenders will receive assets worth $500. But the shareholders of an unlimited liability firm cannot leave it. They must "squeeze" out of themselves 500 dollars. - the difference between the value of assets and the requirements of bondholders. The debt is paid in any case.

Comparison of limited and unlimited liability of two identical firms. If the assets of these firms are less than $1,000, the shareholders of the limited liability company default and the bondholders of the firm become the owners of its assets The assets of the unlimited liability company remain at the disposal of its shareholders, but they must reach into their wallets to pay the holders bonds. The total return of both shareholders and bondholders of both firms is the same.

We said that bankruptcy is a legal way for a company to be taken over by creditors when the company does not fulfill its obligations. Bankruptcy costs are the costs of using this method. Figure 18-5 does not show any bankruptcy costs at all. Note that only a limited liability company has the ability to default and become bankrupt. But no matter what happens to the value of the assets, the combined returns of the bondholders and shareholders of a limited liability company are always equal to the combined returns of the bondholders and shareholders of an unlimited company. Thus, the total market value of both firms at present (this year) should be the same. Of course, the shares of the first are worth more than the shares of the second due to the fact that the first has the right to default. Accordingly, its debt obligations are cheaper.

When creating T. in the form of a limited number of the shortcomings listed above, it can be overcome. Such a partnership provides for the possibility of having even one partner with unlimited liability, which makes all the major decisions. The rest are partners with limited liability, and therefore, in material terms, their obligations are limited only by personal investments. They are not

KOMPLEMENT ARIA (KOMPLEMENT) - members of a limited partnership who bear unlimited liability with their entire fortune for the obligations of the company.

A partnership may involve two or more owners, each of whom has unlimited liability (like the sole owner of the property) for what may happen in the business, and therefore for the obligations of the firm. In other words, the partner, if necessary, is obliged to pay the debts of the company, even from his personal assets, since in this case the principle of unlimited liability of partners applies. Therefore, only a few are ready to become partners and take the risk of losing personal property if the company goes bankrupt. Consequently, firms organized as partnerships are usually of limited size.

Individual firm, private entrepreneurship - a firm owned by one person who owns all its assets and is personally liable for all its obligations (is the subject of unlimited liability).

COMPLETE SOCIETY - its members carry out entrepreneurial activities on behalf of the society as a whole and bear unlimited liability for common debts. In case of insufficiency of the property of the company, which is foreclosed on, its participants shall be jointly and severally liable for obligations with all their property.

UNLIMITED LIABILITY - the obligation to answer for your obligations with all your own property, including personal property.

A company or partnership with unlimited liability is an enterprise or firm with such an organizational and legal form of entrepreneurial activity, in which all members of the company bear unlimited joint and several liability for the obligations of the company with all their property. A contribution to society is recognized as everything that anyone can contribute money, property, services, know-how. These contributions are recognized as the common property of the partnership, business is conducted on the basis of this property and with the general consent of all participants. The participants in this society retain legal independence, and the partnership itself is not a legal entity. In such a society, the leadership belongs to private, not collective business. A general partnership is usually used

Unlimited liability - unlimited liability of a private entrepreneur, liability for the obligations of the enterprise with all its property.

General partnership is not recognized as a legal entity, although it has certain properties of legal personality. A general partnership in the United States is formed by law, adopted in most states, where it is defined as the association of two or more persons to conduct business for profit. Any partner in a general partnership is competent to represent other owners and to incur financial obligations. Each member of the general partnership has unlimited personal liability for

A limited partnership in the United States is called a "limited partnership" and corresponds in its position to a limited partnership. In such firms, the activity of one or more participants is carried out as a general partner, who controls the activities of the partnership and bears unlimited personal liability for the debts, obligations and other debts of the firm. Other participants - partners with limited liability - do not control the activities of the firm. They are not personally liable for the obligations of the partnership, their obligations are limited to a personal contribution to the capital of the firm. The exit of one of the partners does not stop the activity of the company.

COMPLIMENTARY - a full member of a partnership, company, bearing unlimited property liability for their obligations.

O.v.s. is liable for its obligations with all assets. Members of the company are not personally liable for the debts of the company. In O.v.s. instead of

What is "Unlimited Liability"

An activity with unlimited liability is associated with joint owners who are equally liable for the debt and liabilities accrued by the enterprise; this liability is unlimited and can be extinguished by seizing the personal assets of the owners, which distinguishes it from enterprises with limited liability.

As a rule, the unlimited liability that exists in general partnerships and individual owners indicates that any debt accruing within the business - whether the company is unable to repay or default on its debt - each of the business owners is no less liable, and personal wealth can reasonably be seized. to cover the balance. For this reason, most companies choose to form as limited partnerships rather than risk personal assets through unlimited liability ventures.

"Unlimited Liability" PERMISSION

consider, for example, four people working as partners each invest $35,000 in new business which they jointly own. Over a one-year period, the company accrues $225,000 as a liability. If the company fails to repay these debts, or if the company defaults on its debts, all four partners are equally liable for repayment. This means that in addition to the initial $35,000 investment each partner made, all four owners will also need to allocate $56,250 for $225,000 debt relief.

Basis of unlimited liability

An unlimited liability company is most typical in a jurisdiction where company law is based on English law. In the United Kingdom specifically, unlimited companies are registered or are formed by registration under the Companies Act 2006. Other areas where these companies are formed under English law include Australia, New Zealand, Ireland, India and Pakistan.

Germany, France, the Czech Republic and two jurisdictions in Canada are also areas where unlimited companies are commonly formed, however they are referred to as unlimited corporations in Canada.

Despite the number of companies and countries/regions where unlimited companies exist, they are quite unusual shape registration of companies due to the fact that the owners sometimes face a significant burden to cover the debt of the company, especially when the company is facing liquidation.

One of the benefits of unlimited liability is non-disclosure. Etsy, the online craft marketplace, has created an Irish subsidiary in 2015, which is classified as a company with unlimited liability, which means that public statements about the money the company moves through Ireland, or the amount of tax payments, are no longer required.

US unlimited liability

A type of company similar to unlimited liability operates in the US in the form joint-stock company(AO). Among other states, AO operates in associations in New York and Texas, under the Texas Stock Company/Revocable Living Trust. This model has fundamental differences from a general partnership, including the absence of limited liability for shareholders, the formation through a private contract that creates a separate company, and the fact that one shareholder cannot bind another shareholder regarding liability - each is equally liable.

(unlimited liability) Obligation to pay all debts incurred in connection with entrepreneurial activity. takes place in cases where the enterprise is managed by a sole owner or has the form of a partnership (partnership). If the enterprise is established in the form of a limited liability company (limited company), a clear distinction is made between the obligations of a person arising from the activities of the enterprise and his personal (personal) obligations.

Finance. Dictionary. 2nd ed. - M.: "INFRA-M", Publishing house "Ves Mir". Brian Butler, Brian Johnson, Graham Sidwell et al. Osadchaya I.M.. 2000 .

Unlimited Liability

Full responsibility for all debts and other obligations of the legal entity. The general partners of a partnership have unlimited liability

Terminological dictionary of banking and financial terms. 2011 .

See what "Unlimited Liability" is in other dictionaries:

- (unlimited liability) Unlimited liability in relation to the obligations of the company on the part of individuals or business organizations. It is opposed to limited liability (limited liability), in which the shareholders of the company with ... ... Economic dictionary

See Unlimited Liability Glossary of business terms. Akademik.ru. 2001 ... Glossary of business terms

unlimited liability- Obligation to pay all debts incurred in connection with entrepreneurial activity. Unlimited liability occurs when the business is run by a sole proprietor or is in the form of a partnership. Technical Translator's Handbook

UNLIMITED LIABILITY Legal Encyclopedia

Unlimited Liability- Full responsibility for all debts and other obligations of the legal entity. The general partners of a partnership have unlimited liability... Investment dictionary

The obligation of the subject to answer for his obligations with all his own property, including personal property ... Encyclopedic Dictionary of Economics and Law

UNLIMITED LIABILITY- an unlimited amount of losses that the owner of the company (partner) must take on ... Economics from A to Z: Thematic guide

unlimited liability- the obligation to answer for one's obligations with all one's own property, including personal property ... Dictionary of economic terms

See UNLIMITED LIABILITY Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B. Modern Economic Dictionary. 2nd ed., rev. M .: INFRA M. 479 s .. 1999 ... Economic dictionary

- (liability) A legal obligation to pay debts. Unlimited liability means that the individual or company concerned must make a payment if their assets allow them to do so; otherwise they... Economic dictionary