Administrative suspension of the activities of a legal entity

How to temporarily “freeze” a company: suspension of LLC activities

What should the owner of a company on the verge of closure and how to save his reputation and his family business with minimal losses? How does it work and what needs to be done to suspend the activities of an LLC? Let’s look at the nuances of voluntary suspension of an organization’s work.

the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution (Article 75 of this Code);

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Article 25

1. The Chief State Labor Inspector of the Russian Federation - Deputy Minister of Labor and Social Development of the Russian Federation, who is appointed and dismissed from office, has the right to suspend the activities of organizations in which violations of labor protection requirements have been identified, posing a threat to the life and health of workers, until these violations are eliminated The Government of the Russian Federation, and the heads of state labor inspectorates (chief state labor inspectors for the relevant territory) (clause 5 and clause 11 of the Regulations on the Federal Labor Inspectorate, approved by the Decree of the Government of the Russian Federation of January 28, 2000).

2. State labor safety inspectors (clause 10 of the Regulations on the Federal Labor Inspectorate) and state labor inspectors, as well as other officials of the State Labor Inspectorate: the head of the State Labor Inspectorate, his deputies (for legal issues and labor protection), heads of departments and their deputies (for legal issues and labor protection), chief state inspectors and state inspectors labor (on legal issues and labor protection) (clause 6 and clause 10 of the Regulations on the Federal Labor Inspectorate and clauses 3.1 - 3.3 of the Regulations on the State Labor Inspectorate in a constituent entity of the Russian Federation).

Suspension of the activities of organizations or their structural divisions

In accordance with Article 3.12 of the Code of Administrative Offenses of the Russian Federation, administrative suspension of activities consists of temporary cessation of the activities of persons engaged in business activities without forming a legal entity, legal entities, their branches, representative offices, structural divisions, production sites, as well as the operation of units, facilities, buildings or structures, carrying out certain types of activities (works), providing services, which are assigned only by order of a judge.

Consequently, there is no longer a basis for liquidating an organization or terminating the activities of its structural unit due to violation of labor protection requirements, although subclause 6 of part 1 of Article 357 of the Labor Code of the Russian Federation provides as one of the rights of state labor inspectors to send to the courts, in the presence of conclusions of a state examination of working conditions, demands for liquidation organizations or termination of the activities of their structural divisions on this basis.

Material and moral damage as a result of a crime

If one or more grounds arise that give the court the right to suspend the proceedings, both the court and the persons participating in the case may take the initiative in suspending it by filing a corresponding petition.

Article 3.2 of the Code of Administrative Offenses of the Russian Federation provides, along with a fine, warning, and confiscation, such punishment as administrative suspension of activities. This type of liability is applied when a number of violations are committed, if the sanction of the article posted in the Special Part of the Code of Administrative Offenses of the Russian Federation specifies such a punishment. The Plenum of the RF Armed Forces drew attention to this in its resolution.

Every owner of a land plot has faced the need to register a territory with a cadastral register.

The Plenum of the RF Supreme Court drew attention to the fact that these five days are included in the period of suspension of activities if the court makes a positive decision.

Suspension of the company's activities: analyzing the reasons

A temporary ban on activities is carried out by an official who has special powers to do so in accordance with Article 28.3 of the Code of Administrative Offenses of the Russian Federation. In this case, a corresponding protocol is drawn up, which is sent to the district court along with the protocol on the administrative offense. The head of the enterprise is given a copy of the protocol, on the basis of which he issues an appropriate order to stop activities.

One of the common reasons for the administrative suspension of a company’s activities is non-compliance with fire safety norms and regulations (Part 1 of Article 20.4 of the Code of Administrative Offenses of the Russian Federation). After all, the requirement to comply with these standards applies to all companies and has no industry affiliation. While, for example, violation of sanitary and epidemiological requirements for the provision of food for the population applies to public catering organizations (Article 6.6 of the Code of Administrative Offenses of the Russian Federation).

Mishustin ordered to suspend catering activities due to the coronavirus pandemic

https://www.znak.com/2020-03-26/mishustin_poruchil_priostanovit_deyatelnost_obchepita_v_svyazi_s_pandemiey_koronavirusa 2020.03.26

Jaromir Romanov / Znak.com

Russian Prime Minister Mikhail Mishustin ordered the suspension of the activities of catering organizations in connection with the coronavirus pandemic.

“The executive authorities of the constituent entities of the Russian Federation are to suspend from March 28, 2020 until April 5, 2020 the activities of public catering organizations, with the exception of distance selling,” says the order published on the Cabinet of Ministers website.

As part of the fight against the spread of coronavirus, the head of the Cabinet of Ministers from March 28 to June 1, 2020 ordered to suspend the work of sanatoriums, children's camps, ski slopes and public recreation facilities located in Russian resorts. For those who are currently in the relevant institution, self-isolation conditions and meals will be provided in the residence building.

Mishustin instructed to suspend the work of sanatoriums, children's camps and ski slopes until the summer

Due to the coronavirus, all mass cultural, sports and entertainment events have been canceled throughout Russia. The most stringent measures have been introduced in Moscow, where, by order of Mayor Sergei Sobyanin, all cultural and leisure establishments must close, including libraries, cinemas, nightclubs, discos, game rooms, billiard rooms, bowling alleys, water parks, and fitness clubs. A ban on smoking hookahs in restaurants, bars and cafes is being introduced. Dental clinics can be contacted only in emergency cases; MFCs will provide services by appointment only. Until April 14, free travel for students and Muscovites over 65 years of age has been cancelled. Shops, banks and consumer services located in the shopping center remain open for now.

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Vera Vorobyova

On this topic:

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If the company has suspended operations

The list of payments exempt from personal income tax is given in Article 217 of the Tax Code of the Russian Federation. Payments in the amount of at least 2/3 of the employee’s average salary during downtime due to the fault of the employer are not included in the specified list of income. Therefore, these payments are subject to personal income tax. Calculation, withholding and payment of tax are carried out by the employing organization (tax agent) in the manner provided for in Article 226 of the Tax Code of the Russian Federation.

Obviously, if the activities of an organization are suspended, then its expenses are not currently aimed at generating income. If, after downtime, the organization plans to resume operations, then it needs to incur costs associated with eliminating the violations that led to the suspension of work (liquidation of the consequences of an accident, violation of sanitary rules or fire safety). It may be necessary to purchase equipment, attract contractors to carry out work, pay for consulting and information services, and the like. In such cases, such expenses are recognized as economically justified, since they were incurred to subsequently generate income.

What violations may an employee face during coronavirus?

Some unscrupulous employers in the wake of the emergency situation due to the coronavirus pandemic may use unauthorized methods to reduce their financial losses, for example, establishing a shortened work week for employees working remotely. Or other measures that violate workers' rights.

Employees in the organization are sent on unpaid leave

Art. 128 of the Labor Code of the Russian Federation directly establishes that an employee can go on leave without pay only on his own initiative. Therefore, the employer does not have the right to send employees on leave without pay.

In such cases, the courts take the side of the workers, changing the wording to “downtime due to the fault of the employer” or “due to circumstances beyond their control.”

The employer forces you to work in quarantine

In this situation, the employee is obliged to exercise his civic duty and stay home. For your own safety, to protect your family members and other citizens from the virus.

If the employer threatens dismissal or other sanctions for failure to show up for work, the employee can appeal to the prosecutor's office, Rospotrebnadzor, labor inspectorate or court. Any of these authorities will side with the employee, and the enterprise and its management will be punished.

In the context of the rapid spread of coronavirus, the life and health of the entire nation depends only on the responsibility and prudence of every citizen.

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Administrative suspension of activities

This measure consists of a short-term cessation of the activities of branches, representative offices, structural divisions of a legal entity, production sites, as well as the operation of units, facilities, buildings or structures, the implementation of certain types of activities (work), and the provision of services (Part 1 of Article 27.16 of the Code of Administrative Offenses of the Russian Federation) .

When issuing an order to suspend activities, the head of the company must ensure that all employees affected by this order are familiar with it. Therefore, this document should specify the responsibility of department heads to convey the information contained in it to subordinates.

Reasons and procedure for suspending the activities of a legal entity

After this, an application form to the tax office for suspension of the submission of reports is filled out in 2 copies, which indicates the period (its duration should not be more than 5 years). The completed application is accompanied by reporting on all types of taxes, other types of mandatory payments, social contributions and pension contributions from the beginning of the reporting period until the time of suspension of the company. It does not matter that the deadline for submitting the next forms has not arrived.

Administrative suspension of a company’s activities, according to Russian laws, is used when committing offenses of an administrative nature (a list of them is established in the Code of the Russian Federation). The decision on such punishment is made in court. In accordance with Part 2 of Art. 32.12 of the Code of Administrative Offenses of Russia the following actions can be performed: seals are applied, objects are sealed, etc. At the same time, witnesses are invited and an act is drawn up.
A temporary injunction is used before the court decides to suspend work. Compared to an administrative violation of rights, a temporary ban does not require a court decision. Based on Part 2 of Art. 27.16 of the Code of Administrative Offenses, these actions are performed by an authorized official, drawing up a protocol. The duration of the ban does not exceed 5 days (from the actual stoppage of work).

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Suspension of LLC activities by the founders

Since the Civil Code of the Russian Federation and other federal laws do not allow the suspension of the activities of an enterprise by decision of the owners or management, in a state of freezing the LLC is still obliged to:

pay current expenses, including payments to employees who refuse to quit or go on unpaid leave;
maintain accounting records and submit reports of all types;
act as a defendant or third party in court.

Important: suspension of a legal entity’s activities is legally considered downtime due to the fault of the employer. In this case, the latter is obliged to pay employees for downtime in an amount not lower than the average salary of each (Article 157 of the Labor Code of the Russian Federation).

Before suspending the operation of an LLC, you should correctly assess the costs and think carefully about whether the best solution would be to voluntarily liquidate the company with exclusion from the Unified State Register of Legal Entities and open a new legal entity when the time comes to resume business activities.

If a choice is made in favor of suspending the activities of an LLC without liquidation, how to formalize the freeze in accordance with tax and labor laws?

2 months before the suspension of activities, issue an order to temporarily stop the enterprise with the obligatory indication of one or more serious reasons for making such a decision. The document should also reflect the procedures required before a temporary suspension and designate those responsible.
Familiarize each employee of the company with this order against signature. Accept applications for unpaid leave and dismissal (if any), issue relevant orders and familiarize employees with them under signature.
Notify the tax authority in writing that the company is temporarily ceasing operations and will submit zero reports. If the Federal Tax Service does not receive such a notification, it has the right to conduct an unscheduled tax audit based on a sharp reduction in the amount of tax payments.
Collect debts to the company and pay off creditors. This is necessary to avoid claims from creditors threatening penalties and fines, and unplanned receipts of funds. If even one payment comes to the company’s “frozen” account, you will have to prepare non-zero reports and pay tax.
Submit an application to the bank to temporarily block the account.

After these steps, all that remains is to submit zero reports to the Federal Tax Service, Social Insurance Fund, Pension Fund and Rosstat. If the director or founder of the company cannot provide reports in his own hand, he has the right, by agreement, to appoint his representative, issue a power of attorney in his name and have it notarized.

If the suspension without liquidation of the LLC lasts 1 year and the company does not submit reports, the Federal Tax Service will decide to exclude the company from the Unified State Register of Legal Entities (Article 21.1 of Law No. 129-FZ).

Suspension of the organization's activities

Paid seizure of the instrument or subject of an administrative offense, confiscation of the instrument or subject of an administrative offense, as well as administrative expulsion from the Russian Federation of a foreign citizen or stateless person may be established and applied as both primary and additional administrative punishment.

Thus, an organization can carry out activities related to the licensing of several types of activities, the implementation of which requires a separate license. In case of suspension of a license, for example, for the carriage of goods by air, a legal entity can continue to transport passengers by air, and passengers and cargo by sea. In case of administrative suspension of activities, the activities of the entire organization are suspended. Suspension of a license does not mean suspension of the activities of a business entity, and administrative suspension of activities entails automatic suspension of the license.

An example of an application for suspension of work due to non-payment of wages

Tell me how to suspend the activities of a limited liability partnership (generally established), there were no activities, only blank papers were handed in. The manager decided to suspend activities from June 1, 2014. What application must be filled out?

The driver's license itself remains at the disposal of the citizen, but is temporarily considered invalid. The grounds for suspending the proceedings are divided into mandatory (Article 215 of the Code of Civil Procedure) and optional (Article 216 of the Code of Civil Procedure).

Conditions for suspension of activities

The prerequisites for suspending the activities of organizations can be any conditions that threaten the life and health of people.

Suspension of activities is applied in the following cases:

in the event of industrial accidents;
after the occurrence of man-made disasters;
in case of environmental pollution;
in case of mass poisoning of people (applies to the catering sector);
in case of poisoning of people with medications (applies to the scope of activity of pharmaceutical companies);
in case of fires;
in the event of accidents, epidemics, injuries to workers, etc.

If we talk about legislation, the following articles relate to this issue:

Article 5.27 of the Code of Administrative Offenses of the Russian Federation (implies administrative suspension of the work of legal entities in case of violation of labor protection legislation);
Article 6.4 of the Code of Administrative Offenses of the Russian Federation (implies the “freezing” of the work of organizations in case of violation of sanitary standards during the operation of buildings and structures);
Article 6.3 of the Code of Administrative Offenses of the Russian Federation (implies the application of the punishment in question if the proper sanitary and epidemiological situation is not ensured).

The activities of organizations can also be suspended in case of other violations of the law, for example, when carrying out activities without licenses and other permits (Article 9.9 of the Code of Administrative Offenses of the Russian Federation). The same punishment is imposed when promoting psychotropic substances, drugs, weapons, or inciting extremism in the media.

Procedure

The procedure for applying punishment in the form of administrative suspension of the organization’s activities can be started after the discovery of an offense identified by the official inspecting the facility. Such a person may be a representative of consumer supervision, a sanitation station, a fire inspectorate or a labor inspectorate.

The entire process of suspension of activity consists of a number of successive stages. The person who has identified the problem draws up a corresponding protocol on the administrative violation, and then prepares documents for submission to the judicial authorities. Documents confirming the fact of the offense must be attached to the protocol.

The decision to suspend the work of organizations can only be made by a district court, provided that other methods of influence cannot contribute to achieving the goal of the adopted restrictions. The exception is cases of violation of industrial safety standards, in which an official can decide to suspend activities.

The court has the right not to consider the case materials if the protocol on the offense was drawn up by a person who does not have the appropriate authority. If the documents provide inconclusive evidence of a violation of the law, the claim may be denied.

Immediately after the judge issues a ruling on the application of restrictive measures, it is transferred to the bailiffs.

Period of activity restriction

The Code of Administrative Offenses of the Russian Federation establishes that the longest period for which the activities of organizations can be suspended is 90 days.

At the same time, administrative suspension of work should not be confused with a temporary ban on activities, which is imposed to ensure proceedings in a case of an offense.

A temporary ban can be established for a period not exceeding 5 days and cannot affect the activities of the entire organization as a whole. At the same time, practice shows that a temporary ban often entails the suspension of the organization’s activities.

Legal entities and organizations have the right to appeal decisions to suspend their activities. Complaints can be sent to higher authorities or directly to the courts.

Often, if the violations had serious consequences (for example, injury to people), other penalties are added to the suspension of activities, already within the framework of criminal proceedings.

Knowing the founders of organizations about their rights and the procedure for suspending work can help them defend their own interests and prevent unlawful decisions.

At the same time, it is always necessary to remember to comply with all rules and regulations that provide safe working conditions for employees and for the people around them. And if violations are committed, you should not try to evade responsibility - if you are wrong, it cannot be avoided.

The right to suspend work under a contract

The most common problem that contractors face is the delay in fulfillment of counter-obligations by the customer. For example, the customer provides a construction site, equipment, technical documentation late, delays advance payment, etc. All this leads to the fact that the contractor does not meet the deadlines for completing the work.

In order to protect the interests of the contractor, it is necessary to determine cases when it is impossible to do without suspending the work. Such cases must include, firstly, the situation specified in Art. 716 of the Civil Code of the Russian Federation, according to which, if the contractor discovers circumstances that threaten the suitability or durability of the results of the work performed or make it impossible to complete it on time, the contractor is obliged to suspend the work.

In accordance with Art. 719 of the Civil Code of the Russian Federation, the contractor is given the right not to start work, but to suspend the work begun in cases where the customer’s violation of his obligations under the work contract prevents the contractor from fulfilling the contract, as well as in the presence of circumstances clearly indicating that the fulfillment of these obligations will not be carried out in established period (such circumstances include, for example, unpreparedness of the construction site, non-transfer of the construction site).

By virtue of the provisions of Art. 716 of the Civil Code of the Russian Federation, the contractor is obliged to immediately warn the customer and, until receiving instructions from him, to suspend work if it is discovered: - unsuitability or poor quality of the material, equipment, technical documentation provided by the customer or the item transferred for processing (processing); — possible adverse consequences for the customer of following his instructions on the method of performing the work; - other circumstances beyond the control of the contractor that threaten the suitability or durability of the results of the work performed or make it impossible to complete it on time.

In this situation, the courts do not appreciate the heroism and generosity of the contractor, who, despite significant difficulties, began work, but, on the contrary, indicate the loss of his right in such a situation to refer to the forced need to violate the deadlines for completing the work or the rise in cost of work (Resolution of the Autonomous Region of the Moscow Region dated July 18 .2016 in case No. A40-113995/2015, AS MO dated May 31, 2016 in case No. A40-148806/2015).

To ensure that the contractor is confident in the legality of his actions to suspend work even at the stage of concluding a work contract, it is advisable to specify directly in the work contract the grounds for suspending work in the event of failure to fulfill specific obligations of the customer (payment of advance payment, transfer of the construction site, approved project for work, etc.) .

The next basis for suspension of work is the obligation to suspend work due to failure to receive a response from the customer to a message about the need to perform additional work.

By virtue of paragraphs 3 and 4 of Art. 743 of the Civil Code of the Russian Federation, a contractor who discovers during construction work that is not taken into account in the technical documentation and, in connection with this, the need to carry out additional work and increase the estimated cost of construction, is obliged to inform the customer about this. If the customer does not receive a response to his message within ten days, unless the law or the construction contract provides for a different period for this, the contractor is obliged to suspend the relevant work, attributing losses caused by downtime to the customer’s account. The customer is exempt from compensation for these losses if he proves that there is no need for additional work. The contractor who failed to fulfill the obligation established by clause 3 of Art. 743 of the Civil Code of the Russian Federation, is deprived of the right to demand from the customer payment for additional work performed by him and compensation for losses caused by this, unless he proves the need for immediate action in the interests of the customer, in particular, due to the fact that the suspension of work could lead to the destruction or damage of the construction project (Definitions Supreme Court of the Russian Federation dated December 21, 2015 N 308-ES15-16630, Supreme Arbitration Court of the Russian Federation dated January 11, 2011 N VAS-17600/10).

Contractors should always remember this if additional work is not agreed upon, taking a balanced approach to the issue of the risks of downtime or performing work not covered by the contract.

Thus, the courts, in any case, proceed from the need to obtain prior approval for additional work from the customer and, ideally, to sign an additional agreement to the construction contract, otherwise the contractor risks not receiving fair remuneration for the result of his work (Resolution of the Autonomous Region of the Moscow Region dated 12/01/2015 case No. A40-53475/2014, FAS PO dated 05/07/2013 in case No. A12-13011/2012, AS MO dated 12/18/2015 in case No. A40-190732/14).

In such a situation, taking into account the prior approval of the customer for additional work, the absence of an additional agreement to the contract in itself does not exempt the customer from paying for it if the work has been accepted or is of consumer value to the customer and he intends to use it (Resolution of the Federal Antimonopoly Service of the Russian Federation dated 12.03. 2014 in case No. A39-839/2013, AS ZSO dated September 18, 2015 in case No. A70-1320/2014, AS SZO dated August 21, 2015 in case No. A21-2010/2014, AS SKO dated 02/08/2016 in case No. A32 -45291/2014).

In the absence of prior approval of the work from the customer, the courts also take into account the legal requirement to assess the need for immediate action on the construction site and, therefore, the impossibility of suspension and advance notification to the customer. However, it may be necessary to appoint a forensic construction and technical examination in order to establish the need for additional work, its actual volume and cost. If, in such a situation, the courts determine that the contractor had the technical ability to notify the customer of the need for additional work, the risks of such failure to notify are borne by the contractor.

Taking into account the circumstances of a particular case, the facts of signing acts in form KS-2 and KS-3, the courts can evaluate the customer’s actions in signing these acts as a subsequent approval of an increase in the price for additional work (Resolution of the Federal Antimonopoly Service of Ukraine dated May 20, 2013 in case No. A60-28574/ 2012), but in most cases it is still necessary to obtain approval for additional work before the contractor begins it. It should be remembered that in practice the courts also use a different approach, according to which the signing of acts is not taken into account (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 01.04.2005 N KG-A40/1662-05).

In addition, in all cases of suspension of work, it must be remembered that the resumption of work must be carried out after receiving the corresponding letter from the customer.

In conclusion, I would like to note that in order to receive a fair remuneration for the results of the work, the contractor must carefully and in detail work out the draft contract, supplement it if necessary and weigh in detail all the risks when setting a firm price in the contract. As mentioned above, additional work is one of the most controversial issues both in the relationship between the parties and in judicial practice, and therefore, performing additional work without prior written agreement with the customer is fraught with non-receipt of payment for it.

Answer

According to Art. 3.12 of the Code of Administrative Offenses of the Russian Federation, administrative suspension of activities consists of the temporary cessation of the activities of persons carrying out entrepreneurial activities without forming a legal entity, legal entities, their branches, representative offices, structural divisions, production sites, as well as the operation of units, facilities, buildings or structures, and the implementation of certain types of activities (works), provision of services. Administrative suspension of activities is applied in the event of a threat to the life or health of people, the occurrence of an epidemic, epizootic, contamination (contamination) of regulated objects with quarantine objects, the occurrence of a radiation accident or man-made disaster, causing significant harm to the condition or quality of the environment, or in the event of an administrative offense in the field of turnover narcotic drugs, psychotropic substances and their precursors, plants containing narcotic drugs or psychotropic substances or their precursors, and their parts containing narcotic drugs or psychotropic substances or their precursors, in the field of combating the legalization (laundering) of proceeds from crime and financing terrorism, in the field of restrictions on the implementation of certain types of activities established in accordance with federal law in relation to foreign citizens, stateless persons and foreign organizations, in the field of rules for attracting foreign citizens and stateless persons to labor activities carried out at retail facilities (including in shopping complexes), in the field of management procedures, in the field of public order and public safety, in the field of production and circulation of ethyl alcohol, alcoholic and alcohol-containing products, in the field of urban planning, in the field of transport security, in the field of property protection, in the field of application of control - cash registers, as well as in the event of an administrative offense that infringes on the health, sanitary and epidemiological well-being of the population and public morality.

Suspension or suspension as correct

Suspension of proceedings in a case simultaneously suspends the running of all unexpired procedural deadlines (Article 110 of the Code of Civil Procedure). From the day the proceedings are resumed, the procedural deadlines continue. In cases of adjournment of the case, procedural deadlines are not suspended.

After all, according to the law, it does not matter whether the debtor owns a car or not, the main thing is that he has a valid driver’s license.

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If you refuse or are unable to do this, the bailiffs will be able to impose restrictions on the validity of your driver's license.