Bankruptcy, taxes and corporate law: distinguishing useful initiatives from "suffocating" ones

Our legislation is characterized by considerable fluidity – the subjects of legislative initiative do not miss the opportunity to reform what they consider necessary. Of course, many do this out of a desire to achieve the common good, but situations of lobbying the interests of certain individuals, and simply misunderstanding the real situation, are not excluded. Vladimir Kuznetsov, Vice President of the Association of Lawyers in the Field of Liquidation and Bankruptcy, tells about how useful or, on the contrary, destructive initiatives are.

To find out which proposals are useful and what raises questions and doubts, I will analyze the initiatives considered by the Government on May 23, 2022.

Bankruptcy, state registration and taxes

The draft law "On Amendments to Articles 34 and 61.15 of the Federal Law "On Insolvency (Bankruptcy)". The initiator is the Ministry of Justice.

At the end of last year, the Constitutional Court issued a landmark resolution No. 49-P. Then the person controlling the debtor, who was brought to subsidiary responsibility, fought for the right to object to the inclusion of creditors' claims in the register. The applicant has won an important victory for everyone who works in the field of bankruptcy: The Constitutional Court recognized that the requested mechanism is necessary to protect the interests of controlling persons, and recommended that the legislator make appropriate changes.

According to the projected provisions, the person involved in the subsidiary liability will be able to participate in the case when considering issues that may affect his prosecution and the amount of such liability.

This initiative can be appreciated very highly. The projected norms provide a legal basis for participation in court sessions of the person controlling the debtor. Previously, trials were held without such subjects, who only "enjoyed" the responsibility assigned to them. Therefore, the bill of the Ministry of Justice is necessary and correct. Of course, I would like such norms to exist initially… And this could well become a reality if more extensive public consultations with the expert community were held during the development of draft laws.

The draft law "On Amendments to Article 21.1 of the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs". The initiator is the Ministry of Finance.

And this initiative is a product developed following the adoption of the Constitutional Court Resolution No. 51–P of December 2, 2021. Then the question was raised about the constitutionality of the provisions allowing the registration authority to exclude from the Unified State Register a garage-building cooperative that does not submit reports and does not have movement on bank accounts for 12 months. The Constitutional Court instructed the legislator to correct the situation, since the movement of accounts for a non–profit organization is an optional sign of conducting business.

According to the draft law of the Ministry of Finance, the allowing the registration authority to exclude within three days from the date of the decision on the upcoming exclusion from the Unified State Register of Legal Entities will have to send a notification to non-profit organizations created in the forms of real estate owners' partnerships or consumer cooperatives, as well as to persons with the right to act without a power of attorney on behalf of these organizations.

I think that we need to look at the problem more broadly. According to the projected norms, the registration authority obligation to additionally notify organizations applies only to certain organizational and legal forms. However, such a mechanism is needed not only by these legal entities. Let's say the tax service makes a record of the unreliability of information about the location of the company (the company can work at a certain address for both 5 and 10 years). After that, the company is excluded from the Unified State Register by the decision of the registration authority. No notifications! I think that in order to avoid harm to legal entities and their counterparties, each organization should be personally notified of the upcoming exclusion.

The draft law "On Amendments to Article 427 of Part Two of the Tax Code of the Russian Federation". The initiator is the Ministry of the Russian Federation for the Development of the Far East and the Arctic.

These provisions propose to establish a declarative procedure for the application of tax benefits for residents of the territories of the Far Eastern Federal District and the free port of Vladivostok. The application of reduced rates of insurance premiums will be possible within 10 years from the moment residents send a notification to the tax authorities about the use of such a right.

The initiative is good, but its action is rather narrowly focused.

I would like to focus the economy not on increasing the number of diverse measures, but on general systematic work that does not force someone to look for special opportunities. Business does not need to be helped - the main thing is not to interfere with it.

The draft law "On Amendments to Part Two of the Tax Code of the Russian Federation". The initiator is the Ministry of Finance of Russia.

The projected norms relate to tax incentives for the information technology industry. It is envisaged to reduce to 70% the minimum value of the share of income that entitles to the application of reduced income tax rates and insurance premium rates.

This change is quite important: the previous values were up to 90%. And, in order to refuse to apply preferential rates, incomes were scrupulously calculated. Sometimes it was about tenths of one percent – but this was also a reason for refusal. Therefore, I believe that the changes will contribute to significant growth.

Corporate law

The draft law "On Amendments to Articles 3 and 6 of the Federal Law "On the Procedure for the Formation and Use of Endowment Capital of Non-Profit Organizations" and on the Suspension of Certain Provisions of the Federal Law "On the Procedure for the Formation and Use of Endowment Capital of Non-Profit Organizations". Initiator - Ministry of Economic Development.

The initiative is aimed at preserving the existing target capital funds and ensuring their stability in the face of sanctions affecting the activities of non-profit organizations.

The general essence of the amendments is to increase the maximum amount of funds that can be used by a specialized target capital management fund for administrative and managerial expenses.

If we talk in numbers, this is at least up to 25% of the organization's income.

The draft law "On Amendments to the Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation". The initiator is the Ministry of Economic Development.

For joint-stock companies with the status of an international company, they want to allow the issue of multi-voiced shares. In addition, the specifics of shareholders' decision-making are established, as well as the right of the Government to change the date, no later than which a foreign legal entity applying for the status of an international company must be registered.

To summarize it this way: the main idea of the bill is to change the structure of the issue of shares and their conversion for companies applying for the status of international.

Land and urban planning law

The draft law "On Amendments to the Urban Planning Code of the Russian Federation". The initiator is the Ministry of Construction of Russia.

The aim of this initiative is to improve the regulation of the design, construction, and reconstruction of nuclear energy facilities. We are talking about the need to remove from the regulation of particularly dangerous technically complex objects those that are actually scientific, educational, educational, medical. This will make it easier to carry out their reconstruction.

The draft law "On Amendments to Certain Legislative Acts of the Russian Federation". The initiator is the Ministry of Finance of Russia.

The initiative is designed to improve the procedure for leasing public agricultural land plots. The projected changes are aimed at providing such land plots to citizens and peasant farms (under certain conditions). The fact is that these entities cannot compete with larger companies when conducting auctions. I believe that any assistance to citizens gives an incentive to development. The main thing is not to abuse such support, and try not to open a business with credit funds. As a rule, such entrepreneurs burn out quickly.

Serving a sentence, alcohol and the income of officials

The draft law "On Amendments to the Federal Law "On Countering the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism" and Certain Legislative Acts of Russia". The initiator is Federal Financial Monitoring Service.

The projected norms should create an effective and compliant with the standards of the FATF (Financial Action Task Force on Money Laundering) mechanism for the application and cancellation of targeted financial sanctions.

The general essence of the amendments boils down to the fact that the law needs to determine exactly when it is possible to remove the measures of blocking property, money. At the moment, there are only grounds for additional control measures, but there are no grounds for lifting the imposed sanctions. This is a useful initiative, because at least 30% of entrepreneurs suffer from illegally imposed restrictions on their assets.

Draft Federal Law "On Amendments to Article 80 of the Criminal Code of the Russian Federation. The initiator is the Ministry of Justice.

The purpose of this initiative is the rational application of punishment for the commission of particularly serious crimes.

According to the projected norms, a convicted person for a particularly serious crime has the opportunity to change the type of correctional institution already after serving at least half of the term. For example, for a colony-settlement. And after serving 2/3 of the term, the right to replace imprisonment with forced labor appears. Thus, the amendments will allow the prisoners who have no complaints to socialize as soon as possible, to be released or to receive less strict conditions of detention.

The draft law "On Amendments to Article 78 of the Penal Enforcement Code of the Russian Federation". The initiator is the Ministry of Justice.

The purpose of this initiative is to reduce the term of the sentence actually served by convicts for committing particularly serious crimes from 2/3 to half, after which it is possible to transfer from a high–security penal colony to a settlement colony.

The draft law "On Amendments to Article 14 of the Federal Law "On Environmental Expertise". The initiator is the Ministry of Natural Resources.

With this bill, the Ministry of Natural Resources wants to reduce the possibility of public hearings influencing where landfills can be placed; how they should be maintained during the period when they are actively functioning, as well as when they are mothballed.

The draft Law "On Amendments to Article 380 of the Federal Law "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation". The initiator is the Ministry of Finance.

Here, the authorities seek to lift restrictions on the sale of goods in duty-free shops to those who fly from Russia to EU member states. The initiative can be evaluated positively – reducing the number of restrictions will make it possible to sell more Russian goods.

The draft law "On Amendments to Certain Legislative Acts of the Russian Federation". The initiator is the Ministry of Labor.

With the adoption of this bill, the types of income of officials can be detailed. That is, to find out where a person holding a public position earned money - in pedagogical, scientific, creative activities, etc. It's interesting!

Draft Law "On Amendments to the Federal Law "On State Regulation of Production and Turnover of Ethyl Alcohol, Alcoholic and Alcohol-containing Products and on Restriction of Consumption (Drinking) of Alcoholic Products"

I draw attention to the following important points: "The projected norms are aimed at ensuring that more producers of beer, cider and mead begin to be equipped with automatic means. I believe that this is an untimely decision that will increase the burden on small producers, that is, it will negatively affect small businesses.