Bankruptcy of municipal unitary enterprises, as a procedure for declaring the insolvency of a legal entity, is regulated by the Civil Code of the Russian Federation (Article 65) and Federal Law No. 127-FZ “On Insolvency (Bankruptcy)” dated October 26, 2002.
The peculiarity of these legal relations lies in the special organizational and legal form of the subject, which actually exists only in Russian Federation.
Key difference
A fundamentally important issue in the initialization and conduct of the bankruptcy procedure of MUEs is whether or not the head of the debtor enterprise has the right to apply to an arbitration court, with an appropriate application for recognition of the debtor's insolvency (“voluntary bankruptcy”). The disputability of the aspect is related to the form of a legal entity, in which a municipal unitary enterprise belongs to the category of commercial organizations, but is not endowed with the right of ownership of the property assigned to it. These enterprises have only the right of operational management or economic management of the property provided by the owner (Municipal entity), which is indivisible, that is, not subject to distribution by shares, deposits, shares, shares.
Legislative features
The ambiguity of judicial and legal practice regarding the rights and powers of the head of the MUE, if the enterprise has signs of bankruptcy, is resolved on the basis of general principles established by the civil legislation and specified by the Federal Law.
According to Article 9 and Article 30 of Law No. 127-FZ, as well as Article 65 of the Civil Code of the Russian Federation, it is provided that in the event of signs of insolvency (insolvency) of the MUE, the head of the debtor is obliged to notify the owner of the property, sending him information about the existence of grounds for the threat bankruptcy. The owner, in turn, must take timely measures to restore the debtor's solvency, or submit an appropriate application.
Decree No. 29 of December 15, 2004 “On Certain Issues in the Practice of Applying the Federal Law “On Insolvency (Bankruptcy)”” made certain adjustments to the situation.
The practical aspect of the bankruptcy of MUP
According to the legislation, the signs of bankruptcy (insolvency) of municipal unitary enterprises are their debts to creditors for the fulfillment of monetary obligations and (or) payment of mandatory payments in the state budget and extra-budgetary funds, amounting to at least 100 thousand rubles, and not repaid within three months after the date of the established (specified, indicated) execution. Penalties, interest, fines and other financial sanctions for late payment are not included in the amount of the debt minimum.
In the presence of the indicated signs of insolvency, the creditor, the authorized body, or the person entitled to file an application on behalf of the debtor, may apply to the arbitration court.
The bankruptcy procedure of MUP is carried out on the basis of the general norms of the Law. Entering stages:
- observations;
- financial recovery (sanation);
- external management;
- competitive production;
- world agreement.
The appointment of an external manager, temporary economic management, etc. are envisaged.
Insolvency, that is, the inability to fulfill monetary obligations to counterparties or the state, may occur with a legal entity of any organizational and legal form. But the bankruptcy of some of them has its own characteristics associated with the specifics of property relations between the founders and the enterprises they created.
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What is it
- Unitary enterprises, state and municipal, according to the Civil Code, belong to the type of legal entities whose founders are not their participants ().
This distinguishes them from corporate organizations. In addition to state unitary enterprises and municipal unitary enterprises, institutions, funds and ANOs also belong to unitary organizations.
- The second feature of MUP is the right to property. Unlike other legal entities, MUP is not the owner (). He receives property on the right of economic management. The owner will be the municipality, that is, a public legal entity.
The governing body in MUP is the sole one - this is its head. He is appointed by the owner, or rather the body authorized by him. The head is accountable to the founder.
But all decisions relating to the disposal of property, excluding real estate, he takes on his own.
At the same time, MUP is responsible for its obligations with all its property. And the owner (municipality) bears subsidiary responsibility with the MUP only in the event that the enterprise's own property is not enough. This determines the specifics of applying bankruptcy procedures to such legal entities.
Video: housing and communal services
Legislation
- The processes of creation, reorganization and liquidation of the MUP are regulated by the Civil Code () and a special law.
Does it depend on the type of organization?
Virtually any legal entity can be declared bankrupt. The exceptions are institutions, state-owned enterprises, political parties and religious organizations (). Their elimination is carried out in a different order.
Insolvency must be recognized by the decision of the arbitration court. To do this, you will have to contact him with a statement.
Several categories of persons can do this ():
- the debtor himself;
- his creditors;
- debtor's employees;
- state bodies.
After the decision on bankruptcy is made, various procedures prescribed by law are applied to the debtor.
Their goal is to meet the requirements of all creditors as fully as possible. Bankruptcy ends with the liquidation of a legal entity.
The law establishes special rules for conducting bankruptcy for certain categories of legal entity debtors.
For such exceptions general rule, according to include:
- city-forming enterprises;
- agricultural producers;
- financial organizations;
- strategic enterprises;
- subjects of natural monopolies;
- developers.
But the State Unitary Enterprise and the Municipal Unitary Enterprise were not included in these exceptions to the general rule. But, nevertheless, the features of the bankruptcy of these enterprises exist. They are related to the rights of the owner of these legal entities.
The procedure for declaring insolvent a municipal enterprise
The main stages of bankruptcy, according to the law, include:
- observation;
- rehabilitation;
- external management;
- competitive production;
- conclusion of a settlement agreement.
As already mentioned, the bankruptcy of MUP occurs according to general rules. The basis for declaring an enterprise insolvent is an application filed with the arbitration court.
But before that, it is possible to carry out such procedures as observation and sanitation (financial recovery).
They precede the adoption of a decision on bankruptcy and are aimed at improving financial position MUP and restoration of its solvency.
If these measures do not help, then external management is introduced.
It is also aimed at restoring the solvency of the debtor. To do this, the head of the MUP is removed, and instead of him all decisions are made by an external manager ().
He is appointed by the arbitration court from among professional specialists - arbitration managers ().
Depending on how successful the activity of the external manager was, the court makes a decision on:
- termination of bankruptcy proceedings;
- conclusion of a settlement agreement;
- introduction of the following procedure - bankruptcy proceedings.
Since the introduction of bankruptcy proceedings, there is no longer any talk of preserving the enterprise.
Its goal is to fully satisfy the requirements of creditors.
For this purpose, all the remaining property of the MUP is identified and evaluated, which will then be sold, and the funds will be used to pay off debts.
Recognition criteria
MUP, as well as any legal entity, in order to be declared insolvent must meet the following criteria ():
- does not have the ability to fulfill the requirements of creditors, pay salaries and benefits, as well as make mandatory payments to the budget within three months;
- the amount of the debt is not less than 300 thousand rubles.
Such municipal unitary enterprises, as management companies in the field of housing and communal services, may have another sign of insolvency.
In addition to debts to suppliers of water, gas, electricity and the state, they lose the ability to fulfill their obligations to consumers-citizens.
That is, to provide them with public services of proper quality.
Grounds for compulsory liquidation
- If an application for bankruptcy is filed by the debtor enterprise itself, we are talking about planned bankruptcy. This right is granted to him by law.
In the event of circumstances indicating the onset of insolvency, MUP, like any legal entity, can use it. With proper decision making.
- If the application for the introduction of bankruptcy proceedings against the municipal unitary enterprise comes from its creditors, employees, or, as in the case of the bankruptcy of the housing and communal services management company, from consumers of public utilities, then this is already a forced liquidation. Its procedure is the same as in a planned bankruptcy.
The basis for filing an application are overdue obligations to interested parties, namely:
- creditors - for monetary obligations;
- employees, including former ones - on payment wages and severance pay;
- by the state - on obligatory payments (taxes and fees).
If the amount of such debt exceeds the amount specified in the law, and the maturity of debts has expired by more than three months back, then this is a reason to demand the recognition of MUP as insolvent. The party that files a bankruptcy petition with the court has the right to propose a candidate for an arbitration manager in the future.
Key difference from conventional organization
The main difference of the MUP is that its head is not among the founding owners. Consequently, his right to decide on planned bankruptcy is in question. Even if the financial situation is such that bankruptcy seems inevitable.
To prevent the occurrence of insolvency, the head of the MUP is obliged to send information that there are signs of impending bankruptcy to the owner of the property, that is, the local administration (). It is she who has the right to decide on the filing of an application with the arbitration court.
After such a decision is made, the head of the debtor enterprise is obliged to apply to the arbitration court with an application (). He must do this in the shortest time. Which, however, is limited to a month from the moment the decision is made by the owner of the property.
If the manager fails to fulfill this obligation stipulated by law, he will be liable. It consists in the obligation to compensate for those losses that arise in connection with this violation (). In this case, the owner will bear subsidiary liability ().
Questions
Let us consider in detail all the issues encountered in practice.
What about the property
According to the law, MUP is liable for its obligations, including debts, with its movable property. That is, satisfaction of the requirements of creditors is carried out from it up to a certain point. Until a decision is made to open bankruptcy proceedings.
That is, the municipality loses ownership of the property that was transferred to the MUP.
Sometimes all the property owned by the MUP is not enough to fully satisfy the requirements of creditors. The municipality is obliged to add the missing funds only if it was it that initiated the bankruptcy (). Otherwise, local authorities are not liable for the obligations of the MUP.
Arbitrage practice
At least three aspects of their activity should be singled out.
Firstly, the authorized bodies of local self-government, which have the right to file an application for declaring a debtor - a unitary enterprise bankrupt, represent the interests of the municipality as a creditor. Secondly, the authorized bodies of local self-government (committees and departments for the management municipal property, sectoral committees and departments) represent the interests of the municipality as the owner of the property of the debtor - a unitary enterprise. Thirdly, a municipal entity may be a debtor of a unitary enterprise, which is associated with the failure of administrations to fulfill municipalities of their financial obligations to MUP and is the direct cause of the crisis or exacerbates it.
Since when resolving issues of insolvency (bankruptcy) of municipal unitary enterprises, consolidation of the interests of the municipality as a creditor and owner should be ensured, as a rule, the right to represent the interests of the municipality in the event of bankruptcy of legal entities with the right to claim on behalf of the municipality is vested in the Municipal Property Management Committee or other authorized body of the local administration. A committee or other structural subdivision of a local administration (in cases where it acts as a founder of a municipal unitary enterprise) has the right to:
- 1) review the financial condition of the municipal unitary enterprise and make decisions on insolvency and unsatisfactory balance sheet structure;
- 2) make decisions on the voluntary liquidation of the debtor municipal unitary enterprise;
- 3) make decisions on applying to the arbitration court with an application for declaring the debtor bankrupt.
In accordance with Article 30 of the Federal Law "On Insolvency (Bankruptcy)", in the event of signs of bankruptcy, the head of the MUP is obliged to notify the owner of the debtor's property - a unitary enterprise. In turn, the owner of the debtor's property - a unitary enterprise, local governments are obliged to take timely measures to prevent the bankruptcy of organizations. In particular, the owner, before filing an application for declaring the debtor bankrupt in the framework of pre-trial rehabilitation, takes measures aimed at restoring solvency to the arbitration court. On the part of the owner of a unitary enterprise, financial assistance may be provided in an amount sufficient to pay off monetary obligations and mandatory payments and restore solvency.
Decisions on liquidation are made in case of impossibility of financial recovery, but the sufficiency of the company's assets for settlements with creditors and for liquidation activities. If neither one nor the other is possible, proposals are made to initiate bankruptcy proceedings.
If the owner of a unitary enterprise is not interested in continuing its activities, the Federal Law "On Insolvency (Bankruptcy)" makes it possible to voluntarily declare bankruptcy of the debtor enterprise. The basis for declaring a debtor - a unitary enterprise bankrupt is the decision of the owner of its property represented by the authorized body.
According to the Federal Law "On State and Municipal Unitary Enterprises", in the event of liquidation of a unitary enterprise by decision of the owner of the property, in case of his inability to satisfy the requirements of creditors in full, the head of the municipal enterprise or the liquidation commission are obliged to apply to the arbitration court with an application for declaring the enterprise bankrupt. The situation is complicated by the fact that a number of municipal unitary enterprises, in respect of which decisions on liquidation have been made, do not have own funds and property in order to fully satisfy the claims of creditors and reimburse the costs of liquidation activities. For such enterprises, the arbitration court refuses to accept an application for declaring insolvent (bankrupt), referring to the insufficiency of funds to finance court expenses, namely, the remuneration of the arbitration manager and payment for the services of involved persons, and the publication of relevant information.
Since July 2005, in connection with the introduction of amendments to the Federal Law “On State Registration of Legal Entities and Individual Enterprises” and Art. 49 of the Civil Code of the Russian Federation, a new way has appeared to terminate the activities of a legal entity (except for reorganization and liquidation) - exclusion from the unified register of legal entities by decision of the registering authority. If a legal entity during the last 12 months preceding the moment when the registering body took the relevant decision did not submit the reporting documents provided for by the legislation on taxes and fees, and did not conduct operations on at least one bank account, then it is recognized as having actually ceased its activities.
The body coordinating and organizing the implementation of anti-crisis measures in relation to MUP is the Municipal Property Management Committee, which, in accordance with the regulations on insolvency (bankruptcy) of enterprises, performs the following actions:
- 1) conducts a quarterly analysis of the financial stability of the MUP;
- 2) on the basis of this analysis draws up acts on the recognition of the enterprise as insolvent and having an unsatisfactory balance sheet structure;
- 3) on the basis of these acts, obliges the enterprise to develop and submit, in accordance with the established procedure, for consideration and approval to the Committee, plans for financial recovery, previously agreed upon in the sectoral department and the economics committee of the local administration;
- 4) if available real opportunity restore solvency prepares recommendations on measures aimed at preventing the bankruptcy of MUP, develops proposals for its rehabilitation;
- 5) participates in the creation and organization of the activities of target budget funds for the rehabilitation (sanation) of insolvent enterprises;
- 6) considers applications and appeals of interested parties on issues related to the application of reorganization procedures in relation to CBM;
- 7) during the liquidation of the enterprise by decision of the owner, in the event of insufficient property to satisfy the claims of all creditors, he goes to the arbitration court with a statement to initiate proceedings on the insolvency (bankruptcy) of the enterprise.
A special role in the decision-making process is given to the balance commissions, which:
- (1) consider the results of the financial and economic activities of MUP for the reporting period;
- (2) evaluate the effectiveness of the use of municipal property assigned to enterprises on the right of economic management;
- (3) assess the fulfillment by the leaders of the MUP of the terms of the contract;
- (4) develop recommendations for the preparation of financial recovery plans (business plans) and set deadlines for their submission;
- (5) make decisions on the mandatory repayment of debts by non-paying enterprises.
The financial recovery plan should contain the following sections:
- - general characteristics MUP;
- - analysis financial condition MUP;
- - analysis of the market for manufactured products (works and services) and competition in this market;
- - analytical assessment of the balance structure;
- - a list of measures to restore solvency and support efficient economic activity.
The responsibility for drawing up financial recovery plans rests with the head of the MUP. The plan is coordinated with the sectoral department, the economics department of the administration, the deputy head of the administration in charge of the enterprise and is approved by the chairman of the municipal property management committee. Personal responsibility for the implementation of the measures provided for by the plan is assigned to the head of the MUP, and the functions of monitoring the implementation of measures are assigned to the sectoral departments of the administration and the Committee. After the expiration of the period for which the financial recovery plan was drawn up, the results of the activity of the MUE are considered at a meeting of the balance commission, which makes proposals for its further functioning.
In the event that the rehabilitation measures did not give positive results apply for bankruptcy proceedings.
Decisions of the balance commission are drawn up in the form of minutes of its meetings, and, if necessary, in the form of draft resolutions and orders of the head of local self-government.
Among the variety of tools for the financial recovery of enterprises, including unitary ones, one should single out their restructuring.
Restructuring in the narrow sense refers to a set of measures aimed at overcoming financial instability and restoring solvency, or at the implementation of procedures for the liquidation of enterprises and organizations in accordance with applicable law.
If we consider restructuring in a broad sense, then in this concept it is necessary to single out at least three main aspects:
Ё financial (transformation of the structure of assets and liabilities);
Ё structural (transformation of the internal structure and system of external relationships);
Yo legal ( legal procedures and technology of enterprise restructuring).
The restructuring of municipal unitary enterprises can be defined as a set of legal procedures aimed at transforming their organizational and (or) production structure and (or) optimizing the structure of their assets and liabilities.
The restructuring of municipal unitary enterprises will allow:
- (1) to attract additional investments and financial resources in the development of promising CBMs, incl. through their privatization;
- (2) to receive additional budgetary revenues through the sale or leasing of part of the unused property;
- (3) to reduce the burden on the budget by terminating or reducing the volume of activities of unprofitable MUEs;
- (4) improve the efficiency of MUE activities by optimizing the ownership structure.
According to the methods of legal consolidation and redistribution of ownership and control rights, there are two types of restructuring of the MUP:
- reorganization, change in the scale of a unitary enterprise (merger, accession, division, spin-off);
- · change of organizational and legal form of a unitary enterprise, incl. transformation of a unitary enterprise into a state-owned enterprise or a municipal institution, privatization by transforming a unitary enterprise into a joint-stock company with a 100% share of municipal property.
The federal law "On State and Municipal Unitary Enterprises" establishes the forms of reorganization of unitary enterprises presented in Table 3. Deciding on the form in which a unitary enterprise whose property is in municipal ownership will operate, falls within the competence of the municipality as the owner represented by local governments.
Table 3 - Forms of reorganization of unitary enterprises
|
Characteristic |
Decision making by the owner |
Definition of rights and obligations |
|
|
1. Merging two or several CBMs |
Creation of a new CBM with the transfer to it of the rights and obligations of two or more CBMs and the termination of the latter |
Approval of the deed of transfer, the charter of the newly emerged MUE, the appointment of its head |
The rights and obligations of the reorganized MUEs are transferred to the newly established MUP in accordance with the deed of transfer |
|
2. Accession to the CBM of one or more CBMs |
Termination of the activities of one or more MUEs with the transfer of their rights and obligations to the MUE to which they are joining |
Approval of the deed of transfer, amendments and additions to the charter of the municipal unitary enterprise, to which accession is carried out, appointment of its head (if necessary) |
When one or more CBMs are merged with another UE, the rights and obligations of the merged CBMs are transferred to the latter in accordance with the deed of transfer |
|
3. Separation of CBM into two or more CBMs |
Termination of MUE activities with the transfer of its rights and obligations to the newly created MUP |
Approval of the separation balance sheet, charters of the newly created MUPs and the appointment of their leaders |
When the MUP is split, its rights and obligations are transferred to the newly created MUP in accordance with the separation balance sheet |
|
4. Separation from MUP of one or more unitary enterprises |
Creation of one or several MUEs with the transfer to each of them of a part of the rights and obligations of the reorganized MUP without terminating the latter. |
Approval of the separation balance sheet, charters of newly created MUEs, appointment of their heads, amendments and additions to the charter of the reorganized MUP and, if necessary, appointment of its head |
When one or more MUEs are separated from the MUP, each of them receives a part of the rights and obligations of the reorganized UE in accordance with the separating balance sheet |
|
5. Transformation of MUP into a legal entity of a different organizational and legal form |
Transformation of the municipal unitary enterprise into a municipal institution or an organization of a different organizational and legal form. |
The transformation is carried out by the decision of the owner of the MUP property. |
The new legal entity becomes the assignee of MUP, including for all its debts to creditors |
A change in the organizational and legal form of a unitary enterprise occurs when it is transformed into an open joint-stock company in accordance with the legislation on privatization. This procedure is one of the methods of privatization and involves the mandatory inclusion of a unitary enterprise in the forecast plan (program) of privatization, preparation for privatization, drawing up a deed of transfer, as well as compliance with all other legal requirements for the transformation procedure.
The transformation of a unitary enterprise based on the right of economic management into a municipal institution is carried out by the decision of its owner, which involves appropriate preparation and justification.
To streamline and comprehensively address restructuring issues, it is advisable for local administrations to annually form a program for the restructuring of municipal unitary enterprises that do not correspond to the composition of long-term and current socio-economic tasks facing local governments. The main goal of such a program should be to determine the sources and mechanisms of financing, the timing and objectives of restructuring.
The program should include the following main provisions:
Ё the list of enterprises under restructuring;
Ё goals, objectives and directions of enterprise restructuring;
Ё procedure, methods and criteria for making a decision on restructuring;
Ё financial support and financing mechanism;
Ё measures for the social protection of employees of enterprises;
Ё interaction of enterprises with the owner of the property.
To provide financial support to unitary enterprises, by order of the head of the municipality, a financial support fund is formed at the expense of voluntary contributions from municipal unitary enterprises, the funds of which are transferred to the target budget account. The procedure for deductions to the fund and receipt of funds from the fund by municipal unitary enterprises is regulated by a special regulation.
Thus, it can be stated that the Recovery procedures are divided into two types - pre-trial rehabilitation and judicial rehabilitation (financial recovery and external management).
Measures to prevent the insolvency of a participant in property turnover do not constitute an independent bankruptcy procedure, but their timely application can have a significant impact on a change in the financial position of the debtor.
Since July 2005, a new method of terminating the activities of a legal entity (except for reorganization and liquidation) has appeared - exclusion from the unified register of legal entities by decision of the registration authority.
If an enterprise cannot successfully carry out its activities, has a large debt on loans, and is unable to pay taxes, then it can be declared bankrupt. This is stated in the Civil Code of the Russian Federation, and the conditions under which the procedure can be carried out are also indicated there.
There is a possibility to carry out bankruptcy of the state unitary enterprise.
Bankruptcy of a state unitary enterprise
On the pages of our journal, we have repeatedly raised the issues of the imperfection of the legislative framework, the inconsistency of the norms of laws relating to various branches of law (civil, land, privatization, bankruptcy law, etc.), problems of law enforcement and judicial practice.
One of the most difficult and painful problems legal status unitary enterprises.
Bankruptcy of the state
A state-owned enterprise carries out its activities in accordance with the estimate of income and expenses approved by the owner (similar to a state budgetary institution). This circumstance predetermines strictly target (and not formally.
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Bankruptcy of SUE (state unitary enterprises)
Practice shows that the activities of state unitary enterprises (SUEs) are not always commercially effective due to a number of external and internal circumstances that can lead to bankruptcy as a result of high debt, as well as a general deplorable state.
The rules of the bankruptcy procedure in Russia, including the State Unitary Enterprise, are established by the Civil Code of the Russian Federation (Article 65), together with other federal legislation regulating the specifics of conducting legal activities in relation to the entity.
The first relevant regulatory act was the Law of the Russian Federation No. 3929-1 dated November 19, 1992 “On the Insolvency (Bankruptcy) of Enterprises”, which became invalid from the moment the Law No. 6-ФЗ dated January 8, 1998 “On Insolvency (Bankruptcy)” came into force. .
Bankruptcy of SUEs: technology, practice and recent trends
As practice shows, the bankruptcy mechanism in relation to SUEs is used mainly in order to clear the enterprise of accounts payable or re-register ownership of the assets. In the first case, the customer is the state itself, in the second case it is a potential buyer, that is, the future owner of the enterprise.
A positive aspect of the bankruptcy procedure in the interests of the state is that it is easy to obtain its consent to the sale of part of the assets or the entire enterprise as a whole (this is required for external management or bankruptcy proceedings).
Bankruptcy of a Municipal Unitary Enterprise with Property
The authorized body (the Federal Tax Service of Russia) applied to the Arbitration Court with an application to declare the debtor MUP D. insolvent (bankrupt). The requirement of the Federal Tax Service of Russia was substantiated by the fact that the debtor has an arrears in taxes and fees, an obligation to fulfill payment for current payments that has not been fulfilled for more than 3 months, and the amount of arrears exceeds 100,000 (one hundred thousand) rubles.
By the decision of the Arbitration Court, the application of the Federal Tax Service of Russia was satisfied, in relation to the debtor MUP D.
Bankruptcy of a unitary enterprise
A selection of the most important documents upon request (legal acts, forms, articles, expert advice and much more).
Guide to corporate disputes. Issues of judicial practice: Liquidation of a joint-stock company By virtue of paragraph 2 of Article 226 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), the owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor, the head of the debtor and the chairman of the liquidation commission (liquidator) who have committed a violation of the requirements provided for in Clauses 2 and 3 of Article 224 of this Federal Law shall bear subsidiary liability for unsatisfied claims of creditors for monetary obligations and for the payment of obligatory payments by the debtor.
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Please tell me, during bankruptcy proceedings, the property of the state unitary enterprise (OS) is included in the bankruptcy estate, if it is included, is it necessary to consent to the sale of this property from the owner of the property.
According to the act approved by the Ministry of State Property of the Russian Federation on May 20, 1999, the above property was transferred to the State Unitary Enterprise "Gosimpeks" for economic management (vol. 3, pp. 1-13) in the amount in which it was subsequently transferred to the bankruptcy trustee.
The peculiarity of these legal relations lies in the special organizational and legal form of the subject, which actually exists only in the Russian Federation.
Key difference
A fundamentally important issue in the initialization and conduct of the bankruptcy procedure of MUEs is whether or not the head of the debtor enterprise has the right to apply to an arbitration court, with an appropriate application for recognition of the debtor's insolvency (“voluntary bankruptcy”). The disputability of the aspect is related to the form of a legal entity, in which a municipal unitary enterprise belongs to the category of commercial organizations, but is not endowed with the right of ownership of the property assigned to it. These enterprises have only the right of operational management or economic management of the property provided by the owner (Municipal entity), which is indivisible, that is, not subject to distribution by shares, deposits, shares, shares.
Legislative features
The ambiguity of judicial practice regarding the rights and powers of the head of the MUP, if the enterprise has signs of bankruptcy, is resolved on the basis of general principles established by civil law and the specified Federal Law.
According to Article 9 and Article 30 of Law No. 127-FZ, as well as Article 65 of the Civil Code of the Russian Federation, it is provided that in the event of signs of insolvency (insolvency) of the MUE, the head of the debtor is obliged to notify the owner of the property, sending him information about the existence of grounds for the threat bankruptcy. The owner, in turn, must take timely measures to restore the debtor's solvency, or submit an appropriate application.
Decree No. 29 of December 15, 2004 “On Certain Issues in the Practice of Applying the Federal Law “On Insolvency (Bankruptcy)”” made certain adjustments to the situation.
The practical aspect of the bankruptcy of MUP
According to the legislation, the signs of bankruptcy (insolvency) of municipal unitary enterprises are their debt to creditors for the fulfillment of monetary obligations and (or) the payment of mandatory payments to the state budget and extra-budgetary funds, amounting to at least 100 thousand rubles, and not repaid within three months after the date of established (specified, specified) execution. Penalties, interest, fines and other financial sanctions for late payment are not included in the amount of the debt minimum.
In the presence of the indicated signs of insolvency, the creditor, the authorized body, or the person entitled to file an application on behalf of the debtor, may apply to the arbitration court.
The bankruptcy procedure of MUP is carried out on the basis of the general norms of the Law. Entering stages:
- observations;
- financial recovery (sanation);
- external management;
- competitive production;
- world agreement.
The appointment of an external manager, temporary economic management, etc. are envisaged.
Free legal advice:
Bankruptcy of a municipal enterprise
Sooner or later, many legal entities are faced with accumulation huge amount debts to cover which there are not enough material resources and property available to the organization. Depending on the organizational and legal form of the enterprise, the process of its bankruptcy occurs in different ways. This article discusses the main aspects of the bankruptcy of municipal enterprises.
Bankruptcy of legal entities will cease to be a problem if you seek help from experienced lawyers of our company. Flexible prices, effective assistance in the most difficult situations.
Features of municipal enterprises
Before considering the process and features of the bankruptcy procedure through which enterprises created by the municipality go through, their features should be briefly highlighted.
- Article 65.1 of the Civil Code of the Russian Federation determines that the founder of a MUP (municipality) cannot be a participant in an enterprise.
- Article 113 of the Civil Code of the Russian Federation determines that the right to property, which the MUP is in charge of and uses, is assigned to the municipality that organized this MUP.
Legal provisions
The main issues related to the creation, operation and liquidation of MUEs are covered in a special law called “On Municipal and State Unitary Enterprises” (FZ No. 161 of November 14, 2002). In addition, general issues on the procedure for recognizing the MUP as insolvent to answer for its obligations are covered in the 65th article of the Civil Code. Federal Law No. 127, issued on October 26, 2002 and called "On Insolvency", defines in detail the features and procedure for the bankruptcy procedure for a municipal unitary enterprise.
Free legal advice:
Who can apply for bankruptcy and who reviews it?
The content of Article 65 of the Civil Code of the Russian Federation determines that if a legal entity is not a religious organization, state-owned enterprise, institution or political party, the general procedure for insolvency is applicable to it. Federal Law No. 127, which entered into force on October 26, 2002, defines the following circle of persons who have the right to apply to the arbitration court considering cases of insolvency of the MUP with an application for bankruptcy of a legal entity:
- Debtor;
- Organizations or persons that issued a loan to the debtor;
- Persons performing labor duties at the debtor's company;
- State structures or bodies.
If the arbitration court satisfies the requirements of the applicant and declares the MUP, against which the claim was filed, bankrupt, within the time limits established by law, the authorized structures must carry out all necessary actions. However, some categories of MUP, presented below, are exceptions, which determines a slightly different procedure for clerical work when they are recognized as insolvent organizations.
- Producers of agricultural goods;
- City-forming companies;
- Enterprises of strategic importance for the state;
- Organizations of the financial sector;
- Construction organizations.
Grounds for declaring MUE bankrupt
Article 3 of the Federal Law No. 127 (issued on October 26, 2002) establishes the following categories for MUP, falling under which, the enterprise risks being declared bankrupt:
- The total debt exceeds (in monetary terms) the amount of 300 thousand rubles;
- The enterprise does not pay payments to the budget for 3 months or more, and also does not have the funds to timely fulfill its obligations previously assumed.
Procedure for declaring MUP bankrupt
Federal Law No. 127 defines a five-stage process for declaring a MUP insolvent:
- observation. At the monitoring stage, the regulatory authorities collect all the information about the potentially bankrupt company and take the first steps to help the monitored organization.
- Sanation. At the stage of reorganization, there is a transition to active actions designed to restore the ability of the enterprise to properly meet its bills and obligations.
- External control. If the measures taken at the first two stages had no effect, a transition to external management is carried out, the main feature of which is the assignment of the responsibility for making decisions regarding the future of the organization not to the director, but to the chosen arbitration manager. Based on the results of the activities of the arbitration manager, three scenarios are possible:
- Termination of office work in connection with a possible bankruptcy (the company has recovered and can work as before);
- Conclusion of a settlement agreement with creditors and other interested parties;
- Bankruptcy proceedings (liquidation of the enterprise, property valuation and its subsequent sale in order to satisfy the requirements of the MUP by its creditors).
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Features of bankruptcy of commercial organizations
Bankruptcy consists in the termination of activities and the recognition of a commercial organization as insolvent and unprofitable. After the organizations are declared bankrupt, the procedure for their liquidation is carried out due to the inability to fulfill their obligations to employees and creditors.
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A physical bankrupt is an insolvent person who owes more than 500 thousand rubles to creditors, who has not paid debts for more than three months and has gone through the bankruptcy procedure for individuals.
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An organization may be declared bankrupt if the total debt to creditors is more than 300 thousand rubles, and the debt period exceeds three months. The organization is recognized as insolvent on the basis of the decision of the arbitration court, after consideration by it of all evidence of bankruptcy.
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Bankruptcy of the Municipal Unitary Enterprise without property under the simplified bankruptcy procedure of the liquidated debtor.
The liquidator MUP N.R. applied to the Arbitration Court (hereinafter referred to as the court) with a statement in accordance with Part 2 of Art. 9 and Art. 224 of the Federal Law of the Russian Federation “On Insolvency (Bankruptcy)” No. 127-FZ of October 26, 2002 (hereinafter referred to as the Bankruptcy Law) on the recognition of MUP N. as insolvent (bankrupt).
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creditors, not satisfied due to lack of property by virtue of h.9 Article. 142 of the Federal Law "On Insolvency (Bankruptcy)" No. 127-FZ of October 26, 2002. are considered redeemed.
What are the nuances of bankruptcy MUP
Recognition as financially insolvent and identifying signs of bankruptcy of the MUP (municipal unitary enterprise) has much in common with the same procedure as for other commercial organizations. This process is regulated by the Federal Law "On Insolvency (Bankruptcy)".
For an enterprise of a municipal form of organization, there are some nuances, while additional special norms of legislative acts are applied. The specifics of the activity of this type of legal entities, its management and the form of the legal status of property are taken into account.
Fundamental differences
A municipal unitary enterprise is essentially a type of commercial entity, its legal variety, but with some peculiarities. The presence of the word "unitary" in its name implies that the property and assets are not the property of the enterprise, they cannot be divided into shares between its participants. The property does not belong to such an organization, it is only assigned to it by the owner.
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Bankruptcy of state formations is regulated by special rules, and not by the Federal Law “On Insolvency (Bankruptcy)”, this is an exception to it, but MUEs are not state-owned enterprises, these two concepts should not be confused.
Therefore, for them, the procedure is carried out on a general basis in accordance with the specified law with the same stages and rules, but taking into account the peculiarities of its form of ownership, management and legal status of property.
In Art. 61 of the Civil Code is the definition of the liquidation of such an organization. This is a system of actions of a legal and accounting nature, provided for by law and aimed at terminating its activities in full. At the same time, rights and obligations are not transferred to third parties, that is, the process is carried out without succession.
Unlike other objects of bankruptcy, the process is often initiated by the municipality (a state municipal formation of local self-government). Liquidation is carried out by their decision as owners of property and by a court decision on the basis and in the manner prescribed by law.
Often, during the liquidation of the MUE, initiated in a pre-trial procedure according to the voluntary decision of the owner, the liquidation commission determines that the property is not enough to fulfill the requirements of creditors. This means that signs of bankruptcy have been discovered, which, in turn, obliges creditors, the liquidation commission, and the head to file a bankruptcy claim with the arbitration court.
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- Founders are not members.
- The company does not own property, it is in its economic jurisdiction. Municipalities are its owners.
- The enterprise is managed by a single manager appointed by the owner.
- The management reports to the founder, but resolves all issues regarding property, except for the alienation of real estate, independently.
- MUP is liable with its property, and the owner is subject to subsidiary liability with him only when the property is not enough to pay off debts. This is the main feature of the bankruptcy of MUP.
The main difference between MUP and ordinary organizations is that its head does not belong to the founder owners. Although formally he makes a decision on bankruptcy, but in fact this is done on the basis of the order of the owner of the property, that is, the local administration, to which he sends a report on the circumstances of insolvency that have arisen. It is she who decides whether to file an application with the court.
Order of procedure
The bankruptcy procedure is initiated by filing a claim with the court by bankruptcy creditors, employees, the debtor himself, authorized or government bodies to which local governments also belong. It is they who often act as initiators in this case.
Identification of signs of bankruptcy of the MUE is carried out, as a rule, by the initiators of the procedure.
The head of the MUE and the owner of his property are obliged, having identified potential problems, to file a bankruptcy claim themselves in such cases:
- fulfillment of creditor requirements will lead to the impossibility of paying mandatory or other payments;
- the managing, authorized body, including the owner, decided to file a bankruptcy claim;
- the procedure for paying off debts by selling property will complicate or block the activities of a potential bankrupt;
- there are signs of insolvency, lack of property to cover debts or normal work.
Stages
Features of the stages of CBM are related to the legal status of the property and the rights of its owner:
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- analysis of the state of the enterprise and decision-making on further actions;
- ensuring the safety of property.
- Only observational and analytical actions, analysis of documents.
- The enterprise operates as before, but such actions are prohibited: liquidation, reorganization, creation of branches, representative offices, issue of securities, payment of dividends, transactions with property worth more than 5% of assets.
- Loans, credits, guarantees, guarantees - only with the consent of the interim manager.
- At the request of creditors, recovery, execution of executive documents are suspended, excluding the recovery of wages, royalties, alimony, damage to life and health, moral damage, recovery of property from someone else's possession. Arrests are removed, allocation of shares is prohibited.
- The term, together with the consideration of the bankruptcy case by the court, is no more than 7 months. from the date of filing for bankruptcy.
- Creditor claims are made.
- A register of requirements is being compiled. The first meeting of creditors is held.
- The restrictions are the same plus the accrual of penalties is suspended. Search for ways to improve.
- About measures to prevent bankruptcy - about financial injections, lending - the manager informs the creditors in writing.
- term - up to 2 years;
- a payment schedule, a recovery plan is drawn up;
- the debtor begins to pay off debts;
- identification of debit debt and non-purpose equipment that can be sold.
- 12 months with an option to extend for 6 months.
- An external management plan is being drawn up.
- All seals, documents, financial statements are transferred to the external manager.
- The payout limits are the same. Transactions on loans, guarantees, guarantees, assignments of claims, manipulations with shares, shares are allowed.
- Property can be sold only with the consent of creditors.
- Possible organizational actions: staff reductions, reorganization into other forms of a legal entity (merger, accession) in order to improve and optimize work. The competence of the governing bodies is only to increase the authorized capital, the procedure for the meeting of shareholders and representation in the meeting of creditors.
- Re-profiling, closure of unprofitable production facilities, collection of receivables, sale of part of the property is allowed.
- The owner of the MUP property has the right to fully satisfy all the requirements at any time or provide the debtor with funds under an interest-free loan agreement sufficient for this.
- Large transactions can be coordinated with the meeting of creditors.
- The deadline for the fulfillment of all obligations that arose before this procedure is considered to have come.
- Penalties are not charged, the execution of executive documents is terminated, they are transferred to the manager. Company information is no longer confidential. Arrests and restrictions on property are removed.
- Term 1 year with an extension of 6 months.
- Competitive mass is formed.
- Individual creditor claims are suspended.
- Sale of property at auction. Distribution of funds among creditors in order of priority.
- The settlement agreement provides for a debt repayment plan.
- It is agreed with the creditors and the manager of the enterprise and approved by the arbitration court.
Each stage is introduced by the arbitration court on the basis of the application and reports of the arbitration manager. If the court immediately decides on liquidation, these stages do not apply - the competitive stage is immediately introduced.
Types of schemes
There are several types of bankruptcy schemes. The procedure is called planned or voluntary bankruptcy when the decision on it is made by the debtor himself in the event of the circumstances of the insolvency of the enterprise.
In the case of MUP, the decision is actually made by the local administration, although the claim is filed on behalf of the debtor. After the decision on bankruptcy is made by the local administration, the head of the municipal unitary enterprise is obliged to file an application with the court within a month from the date of such a decision.
If there is a voluntary decision of the head and owner, the MUP is also liquidated in a pre-trial order. Then a commission for liquidation is formed, a congress of creditors is held. But if at least one of the creditors has an objection, a bankruptcy claim is filed with the court.
Why do you need a pledge in bankruptcy and what law regulates its retention - read on.
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The forced liquidation of an enterprise occurs when an application is submitted immediately to the court by creditors, its employees or consumers of utilities in the event of the insolvency of the management company.
There are three schemes regarding the order of the stages of the procedure. The first stage - observation - is always mandatory, the rest may not be introduced, it depends on the state of the enterprise.
After observation, there are three ways to develop the procedure:
- If a decision is made to improve, an appropriate stage is introduced.
- If at the observation stage it is decided that the measures taken for rehabilitation will be ineffective, bypassing all other stages, a competitive stage is introduced. This means that the company is already bankrupt and is preparing for liquidation.
- The third is a settlement agreement at any stage of the procedure.
Liquidation conditions
The main conditions and reasons for the bankruptcy of MUP are the same as for commercial organizations: debts over 100 thousand rubles. and impossibility for 3 months. pay them voluntarily or the inability of the creditor to keep them through the bailiff service.
Features of diagnosing the possibility of bankruptcy of the MUP include the fact that often the municipality "throws off" its financial problems on such enterprises, thus bankrupting it.
Description of the conditions and the process of bankruptcy of MUP on a voluntary basis using the example of a standard procedure in stages:
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- The local government decides on liquidation. An order is being made to that effect.
- A commission for liquidation is appointed, which must include a representative of the municipality. If the enterprise is small, one liquidator is appointed. Members of the commission are authorized representatives of MUP.
- Notification of the Federal Tax Service about the procedure.
- Before liquidation/reorganization, employees are notified at least 2 months before its completion.
- Documents are being prepared to reduce staff, the employment service is notified.
- Publication of announcement in official media mass media("Kommersant").
- Creditors are notified in writing of the commencement of procedures and measures taken.
- Drawing up a liquidation interim balance sheet, having previously waited a 2-month period for accepting creditor claims. The balance sheet is approved by the general creditor meeting or the body that made the decision to liquidate.
- If there are not enough funds, public auctions are organized.
- Approval of the bankruptcy plan, priority and distribution of funds in accordance with the law (Article 64 of the Civil Code of the Russian Federation).
- The result of the fulfillment of obligations, a liquidation balance sheet is drawn up, the remaining property is returned to the owner.
- Consequences of the procedure: settlement with creditors, exclusion from the Unified State Register of Legal Entities, bankruptcy petition to the Federal Tax Service, destruction of seals, submission of documents to the archive.
Compulsory liquidation is carried out according to the above table through five stages: observation, rehabilitation, external management, bankruptcy proceedings, settlement agreement. The procedure may include fewer steps (for example, only the first and fourth), depending on the characteristics of the process.
Responsibility
Features of the responsibility of a municipal enterprise are directly related to the legal status of its property, which belongs to the municipality. MUP disposes of it in the order of economic management, but this does not mean that such property is not subject to inclusion in the bankruptcy estate.
Responsibility for violation of the bankruptcy procedure occurs in accordance with the Criminal Code and the Code of Administrative Offenses. Participants in the procedure are responsible for concealing property, information about it, falsifying accounting or accounting documents, for fictitious bankruptcy, and obstructing the arbitration manager.
The owner of the MUP property is a state municipal formation (local self-government bodies), which act in relation to it within their competence established by legislative acts on their status.
MUP is liable with all its property. Such an enterprise is not responsible for the actions of self-government bodies and other municipalities, except for cases when the insolvency of the MUP is caused by the owner of the property. Then the owner bears subsidiary liability, that is, the missing funds of the MUP are compensated at the expense of his property.
Municipal enterprises often act as founders of unitary entities, in court they act as third parties without independent claims, since a court decision may affect the obligations of a public entity if the claim is satisfied.
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The municipality in court represents its body, but it itself, as a legal entity, is not involved as a third party in the case. Its subsidiary liability arises only when the arbitration court declared MUP bankrupt.
Details of MUP bankruptcy in practice
When liquidating an MUP, they always take into account the nuances associated with the organizational form of activity, the powers of the head and the property of the debtor, since their legal status is quite different from ordinary commercial organizations.
The property situation
MUP disposes of two types of property: movable and immovable. In the initial stages of bankruptcy, it meets the first type.
Creditor claims are satisfied from it before the introduction of the competitive stage, but after its introduction, all powers of the owner (municipal formation) are terminated.
His right of ownership in relation to real estate MUP is lost, and it is included in the bankruptcy estate, from which creditor claims are satisfied: the property from the bankruptcy estate is sold at auction, and the funds are distributed among creditors.
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If the property of the MUP is not enough to fully pay off the debts, the municipality has an obligation to add the missing funds, but only when it initiated the procedure.
In all other cases, the local government is not responsible for the debts of the MUP. An analysis of judicial practice shows that there are often cases when, foreseeing insolvency, a municipal institution removes real estate from the jurisdiction of MUP so as not to include it in the bankruptcy estate. But such actions are successfully challenged by creditors, and transactions are declared invalid by the court.
Leader's actions
Art. 65 of the Civil Code provides that the decision on bankruptcy is made by the owner of the property, but the Federal Law “On Insolvency (Bankruptcy)” states that the head is obliged to apply to the court with an application for insolvency himself, if signs of it are found.
The question arises whether the head has the right to make a decision on bankruptcy, because in fact it is subordinate to the owner of the property - the municipality.
In practice, this situation is resolved as follows: the manager sends a report or statement to the owner that signs of bankruptcy have been found. And he decides whether to start the procedure or not, while issuing the appropriate order. The decision is made by the owner, and the application to the court is submitted on behalf of the head of the MUP.
Otherwise, the actions of the housing and communal services of the enterprise are the same as in the bankruptcy of ordinary commercial organizations.
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- timely respond to potential problems of the enterprise, take measures to prevent bankruptcy;
- do not hide the property and provide the liquidation commission, the arbitration manager with all information about it;
- not hinder the actions of the liquidators;
- not violate the sequence of satisfaction of creditors' claims;
- exclude actions aimed at deliberate bankruptcy, do not contribute to the removal of property from economic management.
Legislation
Legislative acts that regulate the procedure:
- Federal Law "On insolvency (bankruptcy)";
- relevant articles of the Civil Code of the Russian Federation Art. 61, 64, 65;
- Federal Law "On State and Municipal Enterprises";
- responsibility is regulated by Art. 195, 196, 197 of the Criminal Code and 14.12, 14.13 of the Code of Administrative Offenses.
Read more about mortgage bankruptcy here.
From here you can learn more about the bankruptcy of a contractor and the recovery of VAT from him.
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