Declaring financially insolvent and identifying signs of bankruptcy of a MUP (municipal unitary enterprise) has much in common with the same procedure as for other commercial organizations. This process is regulated.

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 activities of this type of legal entity, its management and the form of the legal status of property are taken into account.

Fundamental differences

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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.

Bankruptcy of state-owned entities is regulated by special rules, not the Federal Law "On Insolvency (Bankruptcy)", this is an exception from it, but MUP 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.

Features of CBM:

• Founders are not members.
• The enterprise does not own property, it is under its economic jurisdiction. Municipal bodies are its owners.
• The company is managed solely by a manager appointed by the owner.
• The management reports to the founder, but decides all issues related to the property, except for the alienation of real estate, independently.
• The municipal unitary enterprise is responsible for its property, and the owner is subject to subsidiary liability with him only when the property is insufficient to pay off debts. This is the main feature of CBM bankruptcy.

The main difference between MUP and ordinary organizations is that its head does not belong to the founding owners. Although formally he makes a decision on bankruptcy, but in fact this is done on the basis of an order from the owner of the property, that is, the local administration, to which he sends a report on the circumstances of insolvency. It is she who makes the decision to file an application with the court.

Procedure order

Bankruptcy proceedings are initiated by filing a claim with the court by bankruptcy creditors, employees, the debtor himself, authorized or state bodies to which local governments also belong. They are often the initiators in this case.

The identification of signs of CBM bankruptcy is carried out, as a rule, by the initiators of the procedure.

The head of the municipal unitary enterprise and the owner of his property are obliged, having identified potential problems, to file a bankruptcy claim themselves in such cases:

• fulfillment of creditors' requirements will lead to the impossibility of paying mandatory or other payments;
• the manager, the 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

The features of the MUP stages are related to the legal status of the property and the rights of its owner:

Each stage is introduced by the arbitral tribunal on the basis of a petition and reports of the bankruptcy commissioner. If the court made an immediate decision on liquidation, these stages are not applied - 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 when circumstances of the insolvency of the enterprise arise.

In the case of the CBM, the decision is actually made by the local administration, although the claim is filed on behalf of the debtor. After the local administration makes a decision on bankruptcy, the head of the municipal unitary enterprise is obliged to submit an application to the court within one month from the date of such a decision.

If there is a voluntary decision of the head and the owner, the MUP is also liquidated pre-trial. 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 in court.

Forced liquidation of an enterprise arises when an application is filed immediately with 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 steps in 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 of developing the procedure:

• If a decision is made to improve health, the 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 an amicable agreement at any stage of the procedure.

Liquidation conditions

The main conditions and reasons for the bankruptcy of a municipal unitary enterprise are the same as for commercial organizations: debts over 100 thousand rubles. and the impossibility for 3 months pay them on a voluntary basis or the creditor's inability to withhold them through the bailiff service.

The peculiarities of diagnosing the possibility of MUP bankruptcy include the fact that the municipality often “throws off” its financial problems on such enterprises, thus making it bankrupt.

Description of the conditions and process of CBM bankruptcy on a voluntary basis using the example of a standard procedure in stages:

• The local government takes a decision on liquidation. An order is drawn up to this effect.
• A liquidation commission is appointed, which must include a representative of the municipality. If the business is small, one liquidator is appointed. The members of the commission are authorized representatives of the 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 for the reduction of personnel, the employment service is notified.
• Publication of mass media ("Kommersant").
• Lenders are notified in writing of the commencement of procedures and measures to be 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 creditors' meeting or the body that made the decision on liquidation.
• If there is not enough funds, public tenders are organized.
• Bankruptcy plan approval, priority and distribution of funds in accordance with the law ().
• 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, petition for bankruptcy at the Federal Tax Service, destruction of seals, submission of documents to the archive.

Liquidation is compulsorily carried out according to the above table through five stages: observation, rehabilitation, external management, bankruptcy proceedings, amicable agreement. The procedure may include fewer stages (for example, only the first and fourth), depending on the specifics of the process.

Responsibility

The 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 should not be included in the bankruptcy estate.

Responsibility for violation of the bankruptcy procedure comes in accordance with the Criminal Code and the Administrative Code. The participants in the procedure are responsible for concealing property, information about it, forgery of accounting or accounting documents, for fictitious bankruptcy, interfering with the arbitration manager.

The owner of the property of a municipal unitary enterprise is a state municipality (local self-government bodies), which in relation to it act within their competence, established by legislative acts on their status.

MUP is responsible for 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 municipal unitary enterprise is caused by the owner of the property. Then the owner is entrusted, that is, the missing funds of the municipal unitary enterprise are compensated for 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.

The municipality is represented in court by its body, but itself as a legal entity is not involved as a third party in the case. Its subsidiary liability arises only when the arbitral tribunal has declared the MUP bankrupt.

Details of CBM bankruptcy in practice

When liquidating a municipal unitary enterprise, the nuances associated with the organizational form of activity, the powers of the head and the debtor's property are always taken into account, since their legal status is quite different from ordinary commercial organizations.

Property situation

MUP disposes of two types of property: movable and immovable. At the initial stages of bankruptcy, it responds with the first type.

Creditors' claims are satisfied from it before the introduction of the competitive stage, but after its introduction, all the powers of the owner (municipality) are terminated.

Its ownership right in relation to the real estate of the MUP is lost, and it is included in the bankruptcy estate, from which creditor claims are satisfied: property from the bankruptcy estate is sold at auction, and the funds are distributed to honey by creditors.

If the property of the municipal unitary enterprise is not enough for the full payment of 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 municipal unitary enterprise. An analysis of judicial practice shows that it is not uncommon for a municipal institution, foreseeing insolvency, to withdraw real estate from the jurisdiction of the MUP in order not to include it in the bankruptcy estate. But such actions are successfully challenged by creditors, and the transactions are recognized by the court as invalid.

Manager's actions

Art. 65 of the Civil Code stipulates that the owner of the property decides on bankruptcy, but the Federal Law "On Insolvency (Bankruptcy)" states that the head is obliged to apply to the court with an insolvency petition himself if its signs are found.

The question arises whether the head has the right to decide 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, issuing an appropriate order. The decision is made by the owner, and the application is filed with the court on behalf of the head of the municipal unitary enterprise.

Sooner or later, many legal entities are faced with the accumulation of a huge amount of debts, for which there is 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.

(ADV44)

Features of municipal enterprises

Before considering the process and features of the bankruptcy procedure through which the enterprises created by the municipality go, you should briefly highlight their features.

1. Article 65.1 of the Civil Code of the Russian Federation determines that the founder of the municipal unitary enterprise (municipality) cannot be a participant in the enterprise.
2. Article 113 of the Civil Code of the Russian Federation determines that the right to property, which is under the jurisdiction and use of the MUP, is assigned to the municipality that organized this MUP.

Legislative provisions

The main issues related to the creation, functioning and liquidation of municipal unitary enterprises are covered in a special law called “On municipal and state unitary enterprises” (Federal Law No. 161 of November 14, 2002). In addition, general issues on the procedure for recognizing a CBM to be insolvent to meet its obligations are covered in Article 65 of the Civil Code. Federal Law No. 127, issued on October 26, 2002 and bearing the name "On Insolvency", defines in detail the specifics and procedure for a municipal unitary enterprise to go through bankruptcy procedures.

Who can file for bankruptcy and who is considering it?

The content of the 65th article 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 the recognition of insolvency applies 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 MUP insolvency cases with a petition for the bankruptcy of a legal entity:

• Debtor;
• Organizations or persons that issued a loan to the debtor;
• Persons performing labor duties at the debtor's firm;
• Government agencies or bodies.

If the arbitration court satisfies the applicant's requirements and recognizes the MUP, against which the claim was filed, bankrupt, the authorized structures must take all the necessary actions within the time frame established by law. However, some of the categories of CBMs presented below are exceptions, which determines a slightly different order of office work when they are recognized as insolvent organizations.

1. Agricultural commodity producers;
2. City-forming companies;
3. Enterprises of strategic importance to the state;
4. Financial sector organizations;
5. Construction organizations.

Grounds for declaring MUP bankrupt

Article 3 of the Federal Law No. 127 (issued on October 26, 2002) establishes the following categories for MUP, falling under which, the company runs the risk of being declared bankrupt:

• The total debt exceeds (in monetary terms) the amount of RUB 300 thousand;
• The enterprise for 3 months or more does not pay payments to the budget, and also does not have the funds for the timely fulfillment of previously assumed obligations.

The procedure for declaring a CBM bankrupt

Federal Law No. 127 defines a five-stage process for recognizing a CBM as insolvent:

1. Observation. During the monitoring stage, the supervisory authorities collect all information about the company potentially bankrupt and take the first steps to help the monitored organization.
2. Sanitation. At the stage of reorganization, there is a transition to active actions designed to restore the company's ability to regularly meet its accounts and obligations.
3. External control. If the measures taken in the first two stages did not work, a transition to external management is carried out, the main feature of which is the imposition of the responsibility for making decisions regarding the future of the organization not on the director, but on the selected arbitration manager. Based on the results of the activities of the insolvency practitioner, three scenarios are possible:
4. Termination of office work due to possible bankruptcy (the company has improved and can work in the same mode);
5. Conclusion of an amicable agreement with creditors and other interested parties;
6. Bankruptcy proceedings (liquidation of an enterprise, appraisal of property and its subsequent implementation in order to satisfy the requirements for the CBM by its creditors).
7. (ADV45)

Now, when the market is subject to fluctuations caused by reasons of an objective and subjective nature, practically no one is insured against situations when it is impossible to fulfill their credit obligations. Thus, the bankruptcy of a municipal unitary enterprise is the same common occurrence. Extremely unpleasant for creditors, but commonplace. Therefore, it will be useful to know what are the important points and features of the process of liquidating a municipal unitary enterprise through declaring it bankrupt.

Fundamental differences between CBM bankruptcy

Usually, to begin the procedure for closing a company due to inability to pay off debts, the head must apply to the court dealing with legal entities. A creditor or an employee of an enterprise who is not paid wages, that is, in fact, the same creditor, can also apply there. In the case of declaring a municipality bankrupt, there is a controversial legislative issue about the possibility to appeal to the judicial authorities specifically to the head of the enterprise. This is due to the fact that enterprises of this type have only the possibility of operational property management. Ownership belongs to the city or other municipality. Thus, in fact, the decision to send a petition to the court to start the bankruptcy procedure of a unitary enterprise is made not by the head, but by the owners of the property, that is, by the local authorities.

There are a few more differences:

• the founders of the company cannot be its participants;
• the organization is managed by one leader alone;
• MUP reports to the founders, but manages the property independently;
• in the event of bankruptcy, first the property under the management of the CBM is used, and then, on terms of subsidiary liability, the property of the founders is used.

Legislative provisions

At the legislative level, the bankruptcy procedure is regulated by several regulatory documents. First of all, it is the civil code. Specifically, Article 61 defines the concept of liquidation of an enterprise, describes the options for the liquidation process, and when recognizing the insolvency of a company before creditors. The lower legislative acts on bankruptcy include the law adopted at the level of the Federation Council No. 161 of November 14, 2002 "On municipal enterprises." It describes in detail the entire process of education, work and graduation.

Special bankruptcy conditions apply for municipal enterprises

Federal Law No. 127, also adopted in 2002 on October 26, regulates the procedure and features of the bankruptcy process. Bankruptcy of state and municipal enterprises also appears in this regulation. The latest amendments to this law entered into force on October 29, 2017. Some controversial points arising from the application of this law are highlighted in the Resolution of the Supreme Arbitration Court No. 29 of December 15, 2004.

Criteria by which the organization will be liquidated as unable to pay off debts

Despite all the differences between a unitary organization and a conventional one, the criteria for declaring a municipal enterprise bankrupt are no different. There are two such criteria:

• the organization does not pay wages and social benefits for three months, has tax debts and does not have money for such payments;
• the amount of the debt is not less than three hundred thousand rubles.

For organizations - utilities, there is one more additional criterion: failure to fulfill promises to suppliers and, consequently, to citizens - the ultimate recipients of services.

Who initiates the bankruptcy procedure of a municipal enterprise

In accordance with the legislation of Russia and common sense, it is possible to determine the categories of individuals and legal entities that have the opportunity to apply to arbitration to initiate a case on the termination of the organization's activities due to the inability to pay the debt.

• The organization itself is a debtor. If the management realizes that the amount owed to creditors exceeds the amount specified in the law, and there are no options for a positive resolution of the situation, then the head of the enterprise, having obtained the consent of the municipality, files an application for bankruptcy.
• Organizations are lenders. Suppliers of natural resources, financial institutions, suppliers of commodity and material values, which carried out deliveries on credit. This group submits an application, after a long, unredeemable debt, to collect funds from municipal property or otherwise legally. Suppliers take steps when the risk of not receiving the entire amount of the debt is lower than the risk of full default if the organization continues to exist.

Going to an arbitration court gives creditors an opportunity to recover the amount of debt

• MUP employees who do not receive wages or various benefits for the time established by law. The meaning of their actions to declare the organization bankrupt is to receive their legal compensation for their work.
• Government bodies. The organization's activities can be recognized as irrational. Its functions are transferred to another office with more efficient management.

Bankruptcy procedure

If the court satisfies the claim of the plaintiff, then a standard procedure takes place, which includes several points. The initial step will be observation. Controlling structures collect all information about the company, create plans to get out of the financial crisis without liquidation. This stage lasts a maximum of 7 months from the date of application.

Then comes the stage of sanitation. Here the external manager gets some opportunity to influence the decisions of the current leader. A debt repayment schedule is drawn up. The current leader is still working. It can last up to two years.

If at the stage of reorganization the restoration of solvency did not occur, the process goes to the third stage. The external manager fully controls the activities of the organization, takes measures to improve the financial condition. The organization's seals are also held by the external manager. The only thing he cannot do is sell the property of the CBM to pay off obligations to creditors. This period lasts up to a year, but can be extended for another six months. If contracts for large amounts are concluded during the period, this process is usually agreed with the organization's board of creditors.

According to the results of the third stage, several options are possible. If the actions of the external manager are successful, the bankruptcy procedure is terminated and the CBM returns to normal operation.

Competent activity of the external manager is a guarantee of successful financial recovery of the enterprise

If it was possible to agree with the creditors, then an amicable agreement is concluded, the organization continues to function, the debts are paid off according to the plan.

Important: an amicable agreement with creditors can be concluded at any stage of bankruptcy. If for any reason the existence of a particular CBM is important for a credit institution, then it can agree to an agreement even at the stage of observation.

If there are no improvements, bankruptcy proceedings are appointed, the functionality of which includes the sale of property and the repayment of debts at the expense of the funds received. The term is set up to one and a half years. During this period, all charges of penalties are terminated, the documentation on loan obligations is with the external manager.

Liquidation conditions

The main conditions for the liquidation of a municipal unitary enterprise - non-repayment of debts within three months and the amount of debt over 300 thousand - were described above. In addition, when liquidating on a voluntary basis, the municipality must issue an order on liquidation, appoint a commission for liquidation. As a rule, it is created with the participation of employees of the municipality. It is necessary to notify the tax authorities, workers of the enterprise, creditors.

Official information about the upcoming bankruptcy is published in the media. Debt repayment plans are created, which are then implemented. As a result of all actions, the seals of the organization break. The company is excluded from the tax authorities. All documentation is sent to the archive.

Consequences and liability

The consequences of the bankruptcy procedure directly include the liquidation of a unitary structure and the sale of its property to pay off debts. The responsibility of individuals for such events does not go beyond the scope of administrative and criminal liability. MUP workers, according to their job responsibilities, are responsible for the completeness and correctness of accounting, for the full reflection of all the property of the organization in it, as well as for creating obstacles to the external manager. Fictitious deliberate bankruptcy is also a punishable offense.

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from 07/29/2017)

"On state and municipal unitary enterprises"

(as amended and supplemented, entered into force on 01.11.2017) 2. The Russian Federation, a constituent entity of the Russian Federation, a municipal entity shall not be liable for the obligations of a state or municipal enterprise, unless the insolvency (bankruptcy) of such an enterprise is caused by the owner of his property. In these cases, the owner, if the property of a state or municipal enterprise is insufficient, may be entrusted with subsidiary liability for his obligations.

(as revised on July 29, 2017)

(as amended and supplemented, entered into force on 06.08.2017) Article 65. Insolvency (bankruptcy) of a legal entity

Articles, comments, answers to questions: Bankruptcy of a unitary enterprise

The document is available: in the commercial version ConsultantPlus

Forms of documents: Bankruptcy of a unitary enterprise

(Prepared for the ConsultantPlus system, 2017)

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The document is available: in the commercial version ConsultantPlus

CBM bankruptcy

Bankruptcy of municipal unitary enterprises, as a procedure for recognizing 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 the Russian Federation.

Key difference

A fundamentally important issue of initiating and conducting bankruptcy procedures for municipal unitary enterprises is whether or not the head of the debtor enterprise has the right to appeal to an arbitration court, with a corresponding declaration of the debtor's insolvency ("voluntary bankruptcy"). The controversial aspect is associated with the form of a legal entity, in which a municipal unitary enterprise belongs to the category of commercial organizations, but is not endowed with 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.

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Legislative features

The ambiguity of judicial and legal practice regarding the rights and powers of the head of the municipal unitary enterprise, when the enterprise has signs of bankruptcy, is resolved on the basis of the 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 MUP, the head of the debtor is obliged to notify the owner of the property by 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 application.

Resolution No. 29 of December 15, 2004 "On some issues of the practice of applying the Federal Law" On Insolvency (Bankruptcy) "" introduced certain corrections to the situation.

Practical aspect of CBM bankruptcy

According to the law, the signs of bankruptcy (insolvency) of municipal unitary enterprises are their debts to creditors for the fulfillment of monetary obligations and (or) the payment of obligatory 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 established (agreed, specified) performance. Penalties, interest, fines and other financial penalties for late payment are not included in the minimum debt amount.

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 the CBM is carried out on the basis of the general norms of the Law. Stages are introduced:

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• observation;
• financial rehabilitation (reorganization);
• external management;
• bankruptcy proceedings;
• amicable agreement.

The appointment of an external manager, temporary economic management, etc. is envisaged.

Bankruptcy of a municipal enterprise

Sooner or later, many legal entities are faced with the accumulation of a huge amount of debts, for which there is 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 turn to our experienced lawyers for help. 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 the enterprises created by the municipality go, you should briefly highlight their features.

1. Article 65.1 of the Civil Code of the Russian Federation determines that the founder of the municipal unitary enterprise (municipality) cannot be a participant in the enterprise.
2. Article 113 of the Civil Code of the Russian Federation determines that the right to property, which is under the jurisdiction and use of the MUP, is assigned to the municipality that organized this MUP.

Legislative provisions

The main issues related to the creation, functioning and liquidation of municipal unitary enterprises are covered in a special law called “On municipal and state unitary enterprises” (Federal Law No. 161 of November 14, 2002). In addition, general issues on the procedure for recognizing a CBM to be insolvent to meet its obligations are covered in Article 65 of the Civil Code. Federal Law No. 127, issued on October 26, 2002 and bearing the name "On Insolvency", defines in detail the specifics and procedure for a municipal unitary enterprise to go through bankruptcy procedures.

Free legal advice:

Who can file for bankruptcy and who is considering it?

The content of the 65th article 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 the recognition of insolvency applies 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 MUP insolvency cases with a petition for the bankruptcy of a legal entity:

• Debtor;
• Organizations or persons that issued a loan to the debtor;
• Persons performing labor duties at the debtor's firm;
• Government agencies or bodies.

If the arbitration court satisfies the applicant's requirements and recognizes the MUP, against which the claim was filed, bankrupt, the authorized structures must take all the necessary actions within the time frame established by law. However, some of the categories of CBMs presented below are exceptions, which determines a slightly different order of office work when they are recognized as insolvent organizations.

1. Agricultural commodity producers;
2. City-forming companies;
3. Enterprises of strategic importance to the state;
4. Financial sector organizations;
5. Construction organizations.

Grounds for declaring MUP bankrupt

Article 3 of the Federal Law No. 127 (issued on October 26, 2002) establishes the following categories for MUP, falling under which, the company runs the risk of being declared bankrupt:

• The total debt exceeds (in monetary terms) the amount of RUB 300 thousand;
• The enterprise for 3 months or more does not pay payments to the budget, and also does not have the funds for the timely fulfillment of previously assumed obligations.

The procedure for declaring a CBM bankrupt

Federal Law No. 127 defines a five-stage process for recognizing a CBM as insolvent:

1. Observation. During the monitoring stage, the supervisory authorities collect all information about the company potentially bankrupt and take the first steps to help the monitored organization.
2. Sanitation. At the stage of reorganization, there is a transition to active actions designed to restore the company's ability to regularly meet its accounts and obligations.
3. External control. If the measures taken in the first two stages did not work, a transition to external management is carried out, the main feature of which is the imposition of the responsibility for making decisions regarding the future of the organization not on the director, but on the selected arbitration manager. Based on the results of the activities of the insolvency practitioner, three scenarios are possible:
4. Termination of office work due to possible bankruptcy (the company has improved and can work in the same mode);
5. Conclusion of an amicable agreement with creditors and other interested parties;
6. Bankruptcy proceedings (liquidation of an enterprise, appraisal of property and its subsequent implementation in order to satisfy the requirements for the CBM by its creditors).

We will conduct bankruptcy of legal entities with maximum respect for the interests of the owners. In any difficult situation with debts - entrust the management of bankruptcy to professionals.

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What are the nuances of a CBM bankruptcy

Declaring financially insolvent and identifying signs of bankruptcy of a 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 activities of this type of legal entity, its management and the form of the legal status of property are taken into account.

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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.

Bankruptcy of state-owned entities is regulated by special rules, not the Federal Law "On Insolvency (Bankruptcy)", this is an exception from it, but MUP 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 fully terminating its activities. At the same time, the 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 (state municipality of local government). Liquidation is carried out by their decision as the owners of the property and by a court decision on the basis and in the manner prescribed by law.

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Often, during the liquidation of a municipal unitary enterprise, initiated pre-trial in accordance with a voluntary decision of the owner, the liquidation commission establishes that the property is insufficient to meet 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.

• Founders are not members.
• The enterprise does not own property, it is under its economic jurisdiction. Municipal bodies are its owners.
• The company is managed solely by a manager appointed by the owner.
• The management reports to the founder, but decides all issues related to the property, except for the alienation of real estate, independently.
• The municipal unitary enterprise is responsible for its property, and the owner is subject to subsidiary liability with him only when the property is insufficient to pay off debts. This is the main feature of CBM bankruptcy.

The main difference between MUP and ordinary organizations is that its head does not belong to the founding owners. Although formally he makes a decision on bankruptcy, but in fact this is done on the basis of an order from the owner of the property, that is, the local administration, to which he sends a report on the circumstances of insolvency. It is she who makes the decision to file an application with the court.

Procedure order

Bankruptcy proceedings are initiated by filing a claim with the court by bankruptcy creditors, employees, the debtor himself, authorized or state bodies to which local governments also belong. They are often the initiators in this case.

The identification of signs of CBM bankruptcy is carried out, as a rule, by the initiators of the procedure.

The head of the municipal unitary enterprise and the owner of his property are obliged, having identified potential problems, to file a bankruptcy claim themselves in such cases:

• fulfillment of creditors' requirements will lead to the impossibility of paying mandatory or other payments;
• the manager, the 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

The features of the MUP stages 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, document analysis.
• The company 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, sureties, guarantees - only with the consent of the interim manager.
• At the request of creditors, the collection and execution of executive documents are suspended, excluding the collection of wages, royalties, alimony, damage to life and health, moral damage, and the reclamation of property from someone else's possession. Arrests are lifted, the 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 moment of acceptance of the bankruptcy petition.
• Creditor claims are presented.
• A register of requirements is 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.
• On 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 debts and inappropriate equipment that can be sold.

• 12 months with the ability to extend for 6 months.
• An external management plan is drawn up.
• All seals, documents, accounting reports are transferred to the external manager.

• The restrictions on payments are the same. Transactions on loans, guarantees, sureties, assignments of claims, manipulations with shares, shares are allowed.
• Property can be sold only with the consent of creditors.
• Possible organizational actions: staff reduction, reorganization into other forms of a legal entity (merger, accession) in order to improve and optimize work. The competence of the management 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 are allowed.
• The owner of the MUP property has the right at any time to fully satisfy all the requirements or provide the debtor with funds under an interest-free loan agreement sufficient for this.
• Major transactions can be coordinated with the meeting of creditors.

• The deadline for the fulfillment of all obligations that arose prior to this procedure is deemed to have arrived.
• Penalties are not charged, the execution of enforcement documents is terminated, they are handed over to the manager. Company information ceases to be confidential. Arrests and restrictions on property are lifted.

• Term 1 year with an extension of 6 months.
• The bankruptcy mass is being 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 settlement plan.
• It is agreed with the creditors and the management company and approved by the arbitration court.

Each stage is introduced by the arbitral tribunal on the basis of a petition and reports of the bankruptcy commissioner. If the court made an immediate decision on liquidation, these stages are not applied - 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 when circumstances of the insolvency of the enterprise arise.

In the case of the CBM, the decision is actually made by the local administration, although the claim is filed on behalf of the debtor. After the local administration makes a decision on bankruptcy, the head of the municipal unitary enterprise is obliged to submit an application to the court within one month from the date of such a decision.

If there is a voluntary decision of the head and the owner, the MUP is also liquidated pre-trial. 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 in court.

Why do you need a collateral in bankruptcy and what law regulates its retention - read on.

Forced liquidation of an enterprise arises when an application is filed immediately with the court by creditors, its employees or consumers of utilities in the event of the insolvency of the management company.

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There are three schemes regarding the order of the steps in 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 of developing the procedure:

• If a decision is made to improve health, the 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 an amicable agreement at any stage of the procedure.

Liquidation conditions

The main conditions and reasons for the bankruptcy of a municipal unitary enterprise are the same as for commercial organizations: debts over 100 thousand rubles. and impossibility for 3 months. pay them on a voluntary basis or the creditor's inability to withhold them through the bailiff service.

The peculiarities of diagnosing the possibility of MUP bankruptcy include the fact that the municipality often “throws off” its financial problems on such enterprises, thus making it bankrupt.

Description of the conditions and process of CBM bankruptcy on a voluntary basis using the example of a standard procedure in stages:

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• The local government takes a decision on liquidation. An order is drawn up to this effect.
• A liquidation commission is appointed, which must include a representative of the municipality. If the business is small, one liquidator is appointed. The members of the commission are authorized representatives of the 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 for the reduction of personnel, the employment service is notified.
• Publication of the announcement in the official mass media (Kommersant).
• Lenders are notified in writing of the commencement of procedures and measures to be 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 creditors' meeting or the body that made the decision on liquidation.
• If there is not enough funds, public tenders 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, petition for bankruptcy at the Federal Tax Service, destruction of seals, submission of documents to the archive.

Liquidation is compulsorily carried out according to the above table through five stages: observation, rehabilitation, external management, bankruptcy proceedings, amicable agreement. The procedure may include fewer stages (for example, only the first and fourth), depending on the specifics of the process.

Responsibility

The 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 should not be included in the bankruptcy estate.

Responsibility for violation of the bankruptcy procedure comes in accordance with the Criminal Code and the Administrative Code. The participants in the procedure are responsible for concealing property, information about it, forgery of accounting or accounting documents, for fictitious bankruptcy, interfering with the arbitration manager.

The owner of the property of a municipal unitary enterprise is a state municipality (local self-government bodies), which in relation to it act within their competence, established by legislative acts on their status.

MUP is responsible for 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 municipal unitary enterprise is caused by the owner of the property. Then subsidiary liability is imposed on the owner, that is, the missing funds of the municipal unitary enterprise are compensated for at the expense of his property.

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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.

The municipality is represented in court by its body, but itself as a legal entity is not involved as a third party in the case. Its subsidiary liability arises only when the arbitral tribunal has declared the MUP bankrupt.

Details of CBM bankruptcy in practice

When liquidating a municipal unitary enterprise, the nuances associated with the organizational form of activity, the powers of the head and the debtor's property are always taken into account, since their legal status is quite different from ordinary commercial organizations.

Property situation

MUP disposes of two types of property: movable and immovable. At the initial stages of bankruptcy, it responds with the first type.

Creditors' claims are satisfied from it before the introduction of the competitive stage, but after its introduction, all the powers of the owner (municipality) are terminated.

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Its ownership right in relation to the real estate of the MUP is lost, and it is included in the bankruptcy estate, from which creditor claims are satisfied: property from the bankruptcy estate is sold at auction, and the funds are distributed to honey by creditors.

If the property of the municipal unitary enterprise is not enough for the full payment of 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 municipal unitary enterprise. An analysis of judicial practice shows that it is not uncommon for a municipal institution, foreseeing insolvency, to withdraw real estate from the jurisdiction of the MUP in order not to include it in the bankruptcy estate. But such actions are successfully challenged by creditors, and the transactions are recognized by the court as invalid.

Manager's actions

Art. 65 of the Civil Code stipulates that the owner of the property decides on bankruptcy, but the Federal Law "On Insolvency (Bankruptcy)" states that the head is obliged to apply to the court with an insolvency petition himself if its signs are found.

The question arises whether the head has the right to decide on bankruptcy, because in fact it is subordinate to the owner of the property - the municipality.

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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, issuing an appropriate order. The decision is made by the owner, and the application is filed with the court on behalf of the head of the municipal unitary enterprise.

Otherwise, the actions of the housing and communal services enterprises are the same as in the case of the bankruptcy of ordinary commercial organizations.

• promptly respond to potential problems of the enterprise, take measures to prevent bankruptcy;
• not to hide the property and provide the liquidation commission, the arbitration manager with all information about it;
• not to interfere with the actions of the liquidators;
• not to violate the order of satisfaction of creditors' claims;
• exclude actions aimed at deliberate bankruptcy, do not contribute to the withdrawal of property from economic management.

Legislation

Legislative acts that govern 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 governed by Art. 195, 196, 197 of the Criminal Code and 14.12, 14.13 of the Administrative Code.

Read more about mortgage bankruptcy here.

From here you can learn more about the bankruptcy of the contractor and the collection of VAT from him.

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Difference between liquidation and bankruptcy procedures of a municipal unitary enterprise

What is the difference between bankruptcy and liquidation procedures in relation to a municipal unitary enterprise (MUP)? What are the terms and stages of their implementation? Can the founder of the municipal unitary enterprise decide to liquidate it? Can the founder of the municipal unitary enterprise apply for bankruptcy? What are the consequences of liquidation and bankruptcy? What are the transactions with the property of the municipal unitary enterprise during its liquidation and if it is declared bankrupt?

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Liquidation of a municipal unitary enterprise

In accordance with paragraph 1 of Art. 61 of the Civil Code of the Russian Federation, the liquidation of a legal entity means its termination without transferring its rights and obligations to other persons in the manner of universal legal succession.

The procedure for liquidating a unitary enterprise is determined by the Civil Code of the Russian Federation, Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises" (hereinafter - Law N 161-FZ) and other regulatory legal acts (clause 6 of Article 35 of Law N 161 -FZ).

As follows from clause 2 and clause 3 of Art. 61 of the Civil Code of the Russian Federation, paragraphs 1 and 2 of Art. 35 of Law No. 161-FZ, a unitary enterprise can be liquidated by a decision of the owner of its property, as well as by a court decision on the grounds and in the manner established by the Civil Code of the Russian Federation and other federal laws.

For more details on the procedure for the liquidation of a municipal unitary enterprise, see Question: A municipal unitary enterprise is liquidated by the decision of the owner of the property. What is the algorithm of actions in this situation? (response from the Legal Consulting Service GARANT, December 2014).

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Here, we note that if in the course of liquidation signs of bankruptcy of the enterprise are revealed or it is established that the property of the enterprise is insufficient to satisfy the claims of creditors, the liquidation commission or the head are obliged to apply to the arbitration court with a petition for bankruptcy of the enterprise (Clause 5 of Article 35 of Law No. 161-FZ, clause 4 of article 63 of the Civil Code of the Russian Federation). In this case, the liquidation of a unitary enterprise is possible only in compliance with the procedure provided for by Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law).

Insolvency (bankruptcy) of a municipal unitary enterprise

In accordance with Art. 2 of the Bankruptcy Law, insolvency (bankruptcy) is a debtor's inability to fully satisfy creditors' monetary obligations and (or) fulfill the obligation to pay mandatory payments recognized by an arbitration court.

Like other commercial organizations, a unitary enterprise that is not a state-owned enterprise (Article 65 of the Civil Code of the Russian Federation) can be declared insolvent (bankrupt) by a court decision, which entails its liquidation. The grounds for a court to declare a unitary enterprise insolvent (bankrupt), the procedure for its liquidation, as well as the order of satisfaction of creditors' claims are established by the Bankruptcy Law.

The debtor, the bankruptcy creditor, the authorized bodies have the right to appeal to the arbitration court with an application for declaring the debtor bankrupt (clause 1 of article 7 of the Bankruptcy Law).

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According to paragraph 1 of Art. 9 of the Bankruptcy Law, the head of the debtor is obliged to apply to the court with an application for declaring the debtor bankrupt in cases where:

1) the satisfaction of the claims of one creditor or several creditors makes it impossible for the debtor to fulfill monetary obligations or obligations to pay mandatory payments and (or) other payments in full to other creditors;

2) the debtor's body authorized in accordance with its constituent documents to make a decision on liquidating the debtor has made a decision to apply to the arbitration court with the debtor's application;

3) the body authorized by the owner of the property of the debtor - a unitary enterprise, made a decision to apply to the arbitration court with the debtor's application;

4) foreclosure on the debtor's property will significantly complicate or make impossible the economic activity of the debtor;

5) the debtor meets the signs of insolvency and (or) the signs of insufficient property;

6) The bankruptcy law provides for other cases.

By virtue of paragraph 2 of Art. 6 of the Bankruptcy Law, unless otherwise provided by this Law, bankruptcy proceedings may be initiated by an arbitration court, provided that the claims against the debtor - a legal entity in the aggregate amount to at least 300 thousand rubles, and there are also signs of bankruptcy established by Art. 3 of the Bankruptcy Law. In particular, according to paragraph 2 of Art. 3 of the Bankruptcy Law, a legal entity is considered incapable of satisfying creditors' claims for monetary obligations and (or) fulfilling the obligation to pay mandatory payments, if the corresponding obligations and (or) obligations have not been fulfilled by him within 3 months from the date when they should have been performed.

The composition and amount of monetary obligations and obligatory payments are determined on the date of filing an application for declaring the debtor bankrupt with the arbitration court, unless otherwise provided by the Bankruptcy Law (clause 1 of article 4 of the Bankruptcy Law, clause 11 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 08.04.2003 No. 4 "On some issues related to the introduction of the Federal Law" On Insolvency (Bankruptcy) ").

When considering the bankruptcy case of a debtor - a legal entity, the following procedures are applied (Article 2, paragraph 1 of Article 27 of the Bankruptcy Law):

1) supervision - a procedure applied in a bankruptcy case to a debtor in order to ensure the safety of his property, analyze the financial condition of the debtor, draw up a register of creditors' claims and hold the first meeting of creditors. The maximum duration of the observation procedure is established by clause 3 of Art. 62 of the Bankruptcy Law with reference to Art. 51 of this Law. On the basis of these norms, the observation procedure must be completed within a period not exceeding 7 months from the date of receipt of the application for declaring the debtor bankrupt by the arbitration court;

2) financial recovery - a procedure applied in a bankruptcy case to a debtor in order to restore his solvency and repay the debt in accordance with the debt repayment schedule. Financial rehabilitation is introduced for a period not exceeding 2 years (clause 6 of article 80 of the Bankruptcy Law);

3) external management - a procedure applied in a bankruptcy case to a debtor in order to restore his solvency. This procedure is introduced for a period of no more than 18 months, which can be extended for no more than 6 months, unless otherwise provided by the Bankruptcy Law. At the same time, external management cannot be extended for a period exceeding the aggregate period of financial rehabilitation and external management, which is 2 years (clause 2 of article 92 of the Bankruptcy Law);

4) bankruptcy proceedings - a procedure applied in a bankruptcy case to a debtor who has been declared bankrupt in order to adequately satisfy the claims of creditors. Bankruptcy proceedings are introduced for a period of up to 6 months. In this case, the period of bankruptcy proceedings can be extended by no more than 6 months (clause 2 of article 124 of the Bankruptcy Law);

5) amicable agreement - a procedure applied in a bankruptcy case at any stage of its consideration in order to terminate bankruptcy proceedings by reaching an agreement between the debtor and creditors.

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