Recently, many media outlets reported that from September 1, 2017, the Federal Tax Service plans to exclude more than 300,000 organizations from the Unified State Register of Legal Entities. This caused a lot of noise among accountants and company directors. What are the grounds for excluding legal entities from the Unified State Register of Legal Entities from September 1, 2020? Based on paragraph 2 of Article 21.1 of the Federal Law of August 8, 2001 No. 129-FZ, can any inactive organization be removed from the register by decision of the tax authority? Or, in order to be excluded, information about the company must be declared unreliable by the court? What is considered unreliable information in the Unified State Register of Legal Entities and who should be afraid of the upcoming mass exclusion from the register? Let's look into the details.
Exclusion of a company from the Unified State Register of Legal Entities until September 1, 2017
Let us say right away that tax inspectorates had the right to make decisions on the exclusion of legal entities from the Unified State Register of Legal Entities even before September 1, 2017. They could remove any inactive companies from the register. The characteristics of inactive legal entities are contained in paragraph 1 of Article 21.1 of the Federal Law of 08.08. 2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs” (hereinafter referred to as Law No. 129-FZ).
Which organizations are considered inactive?
A company that, during the last 12 months preceding the decision of the INFS, did not submit reporting documents on taxes and fees, and did not carry out transactions on at least one bank account, is recognized as having actually ceased its activities (inactive legal entity). Such a legal entity may be excluded from the Unified State Register of Legal Entities. The basis is paragraph 1 of Article 21.1 of Law No. 129-FZ.
For example, on August 7, 2020, Interdistrict Inspectorate of the Federal Tax Service of Russia No. 9 for the Oryol Region reported that over the 7 months of 2020, 398 decisions were made on the upcoming exclusion of inactive legal entities from the Unified State Register of Legal Entities. The Federal Tax Service Inspectorate for the Udmurt Republic also informed that in the first half of 2020, similar decisions were made in relation to 1,667 organizations. Decisions on the upcoming exclusion from the Unified State Register of Legal Entities are made regardless of the taxation regime applied (“simplified”, USTV or general regime – it does not matter).
Challenging exclusion from the Unified State Register of Legal Entities
Note! The main controversial issue in this case is: are formal criteria sufficient for exclusion from the Unified State Register of Legal Entities? Judicial practice has not yet given a clear answer; there are no guiding explanations.
The Arbitration Court of the Moscow District takes a rather tough position. He believes that if all the formal signs of an inactive legal entity are present, as well as compliance with the procedure for this procedure, exclusion is legal, despite the organization’s property, participation in litigation, and the presence of any reasons why it did not file objections within three months ( see the resolution of the Moscow District Arbitration Court dated August 31, 2018 in case No. A40-218922/2017).
Meanwhile, the Supreme Court of the Russian Federation, in its ruling dated December 26, 2018 No. 301-KG18-8795, indicates that the presence of formal signs of the absence of activity of a legal entity does not always mean its actual termination. The participation of an organization in legal proceedings, for example, indicates its continuation of activities and prevents exclusion from the Unified State Register of Legal Entities. In addition, the circumstances and reasons why the legal entity did not submit its objections within three months or submitted them in violation of the deadline must be clarified.
The ruling of the Supreme Court of the Russian Federation dated February 12, 2019 in case No. 304-KG18-18451 clarified that the three-month period established for filing applications from interested parties is not preemptive. Applications submitted in violation of this deadline may also serve as grounds for canceling the decision to exclude from the Unified State Register of Legal Entities.
Conclusion. The most promising basis for challenging the exclusion seems to be a violation of the procedure by the regulatory authority. In addition, you can rely on the actual conduct of activities and you should definitely submit an application from the interested party (even if the three-month deadline is missed).
New powers of tax authorities from September 1
From September 1, 2020, there are more grounds for excluding organizations from the Unified State Register of Legal Entities. From this date, tax authorities have the right to decide to exclude legal entities. from the Unified State Register of Legal Entities, if (clause 5 of Article 21.1 of Law No. 129-FZ):
- the organization has signs of being inactive, it does not have funds for liquidation costs and it is impossible to assign these costs to its founders (participants);
- The Unified State Register of Legal Entities contains information about a legal entity, in respect of which a record of their unreliability has been made.
As of September 1, 2017, tax authorities received the right to exclude companies from the Unified State Register of Legal Entities without a trial if an entry of unreliability has been in the register for more than six months.
Thus, from September 1, 2017, an entry about unreliability in the Unified State Register of Legal Entities is an independent basis for the exclusion of a legal entity from the Unified State Register of Legal Entities. Therefore, in our opinion, it makes sense to download electronic extracts from the Unified State Register of Legal Entities for your company and your main counterparties in advance on the Federal Tax Service website. In the extract you can see if there is a note about unreliability in it. Tax authorities put such marks under the information that they consider fictitious.
Restoration of an inactive legal entity
In this article we will talk about the disadvantages of excluding inactive persons and the possibility of reinstatement in the register of legal entities in the event of erroneous exclusion.
It is not always the case that if a company does not operate right now, it will not resume it in the future and it must be removed from the register as inactive. This happened with one of the clients of Legal, which will be discussed later.
In October 2020, we were contacted by the general director of the company, who accidentally discovered that back in January his company had been excluded from the register of legal entities as inactive . There is a further explanation here: indeed, between the decision on the upcoming exclusion of an inactive legal entity from the Unified State Register of Legal Entities and the actual exclusion of it from the register, at least three months pass, during which a representative of the legal entity can submit an application to the registration authority (in St. Petersburg this is MRI Federal Tax Service No. 15) and a document confirming the conduct of activities, for example, any agreement concluded with a counterparty, in which case the decision on the upcoming exclusion will be cancelled, however, the Tax Service does not notify the legal entity in writing of either the decision on the upcoming exclusion or the exclusion from the register. Entries about this appear only in the extract from the Unified State Register of Legal Entities (an electronic extract from the Unified State Register of Legal Entities can be obtained for free on the website egrul.nalog.ru), so without ordering an extract, an entrepreneur could not find out whether his company was excluded from the register or not. This was the case in the described case. From a conversation with the general director, it turned out that the company has not been conducting business since the end of 2015, and in March 2016 the current account was closed. It would seem that there is no need to worry: well, the company was excluded from the Unified State Register of Legal Entities as inactive, it decides to work again and registers a new company. However, everything turned out to be more complicated. Firstly, the company was excluded from the register with tax debts and it was impossible to register a new company without paying off these debts (we described a similar situation in the previous article), and secondly, the company had an expensive car on its balance sheet. It was in the car, which was used by a trusted person, that all the value of the company lay.
Of course, the founder of a legal entity excluded from the register is its legal successor, however, along with the rights to this car, the responsibility for paying several hundred thousand in transport tax and numerous fines also passes to him. Also, to re-register a car with the traffic police, you need to actually have it, and at that moment it was located far from St. Petersburg.
We decided to look for ways to restore the excluded legal entity in the register of legal entities . Although 10 months passed from the moment of exclusion (January 2017) to contacting our legal office (October 2020), the deadlines were not violated: an appeal against the decision of the registration authority is possible within one year.
As is known, the grounds for exclusion are the simultaneous fulfillment of two conditions: the absence of transactions on the current account and the failure to submit tax reports within one year. Having ordered a report reconciliation report from the district tax office, it turned out that tax reporting for 2020 was not submitted, that is, one of the conditions for exclusion from the register was met. However, we managed to find copies of two payment orders for the transfer of funds from the account of a legal entity, but we could not properly certify them in the bank, confirming their authenticity: the current account has long been closed, and the legal entity does not exist. But, as you know, since May 2014, organizations have been exempted from the obligation to notify the tax authorities about the opening and closing of a current account (https://www.nalog.ru/rn78/yul/interest/calculation/open_close/4644854/), which implies the presence The tax inspectorate has the ability to independently find out this information, which means there is no need to certify payment orders; if necessary, the tax office will request this information from the bank independently.
So, having written an application for the restoration of the excluded legal entity and attaching copies of two payment orders confirming the conduct of transactions on the current account less than a year before exclusion from the register, we submitted them to the Federal Tax Service Department for St. Petersburg (the superior body in relation to the registration authority - MRI Federal Tax Service No. 15 for St. Petersburg).
In November 2020, we received a response from the Federal Tax Service. As expected, based on the results of consideration of our application and the materials presented by the District Tax Inspectorate, the Department instructed the registration authority - MRI Federal Tax Service No. 15 for St. Petersburg to invalidate the entry on exclusion from the register and deregistration with the tax authority. At the moment, the specified legal entity is already Active, and the entries on exclusion from the register and deregistration have been cancelled.
Unfortunately, no one is immune from the mistakes of an accountant who forgets to submit zero reports and from the mistakes of tax authority employees. Therefore, if your company does not conduct business activities, we recommend that you periodically order an extract from the Unified State Register of Legal Entities, checking whether the tax authority has made a decision on the upcoming exclusion. Just one application accompanied by a document confirming the conduct of activities will save you from all the problems described above.
Residents of the city of St. Petersburg can get legal advice for liquidating a legal entity from the Zashchita company - free of charge!
Afanasyev Alexander Sergeevich - Head of the Registration Department
List of normative legal acts used
1. Federal Law “On state registration of legal entities and individual entrepreneurs” dated 08.08.2001 No. 129-FZ 2. Federal Law “On amendments to certain legislative acts of the Russian Federation in terms of ensuring the reliability of information provided during state registration of legal entities and individual entrepreneurs” 03/30/2015 No. 67-FZ 3. Letter of the Federal Tax Service dated 09.09.2005 No. CHD-6-09/ [email protected] 4. Order of the Federal Tax Service dated 16.11.2005 No. SAE-3-09/ [email protected]
Evgenia Bondarenko, managing partner of Usconsult LLC, an associated office of GRATA International in Novosibirsk
How is a legal entity excluded from the Unified State Register of Legal Entities during reorganization?
In order to voluntarily “get rid” of a company that does not generate income and is not engaged in economic activities, there are alternative methods, which include all types of reorganization measures.
There is also a positive aspect in the procedure for exclusion from the Unified State Register of Legal Entities through reorganization: a relatively small number of documents that are required for submission to the registration authorities. In addition, the period during which the liquidation of the organization will be considered completed ranges from two to four months.
As soon as the founders of the enterprise decide on future restructuring, it is necessary to obtain official consent from the founders of the successor company of the liquidated company. The reorganization verdict and the corresponding Form C-09-4 notice must be submitted to the Internal Revenue Service. At the same time, an entry about the start of the procedure is made in the Unified State Register of Legal Entities.
Within five days, the legal entity is obliged to notify in writing all creditors of the proposed liquidation. Also, according to the law, the founders must publish information about the reorganization 2 times in the “Bulletin of State Registration” - a special journal. A month must pass between announcements.
