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Voluntary liquidation by the decision of participants (shareholders) of the company and has clearly put forward the legal procedure.
Joint-stock company may be liquidated by decision of the General meeting of shareholders qualified - not less than 3/4 majority of votes and a limited liability company can be dissolved only by a unanimous decision of its participants.
AGTL law firm, with significant experience in these complex procedures, ensure compliance with all requirements of the law, registered and tax authorities with the aim of obtaining a positive result – the cessation of the activities of the company.
According to part 1 of article 104 of the civil code of Ukraine a legal entity is terminated as a result of the transfer of all their property, rights and duties of other doves-successors (merger, accession, division, transformation) or liquidation.
Enterprise - independent economic entity created by the competent organ of state power or local government or other entities for satisfaction of social and personal needs through systematic implementation of industrial, research, trade, other business activities in the manner prescribed by the HC of Ukraine, and other laws.
Liquidation of the enterprise - implementation of measures on termination of business activity of the enterprise, align it fixed assets to the state, which guarantees the safety of people, property and the environment, and measures for the social protection of redundant workers.
Elimination is one of the forms of termination of activities of a business entity, that is, it is a form of termination of legal entity, when it ceases to exist with all his rights and responsibilities.
In the event of liquidation rights and responsibilities are transferred to another person.
Liquidation of an enterprise is a long and complex process in which not to do without the participation of an accountant, especially in the preparation of the liquidation balance.
With the elimination of the activity of the company is terminated without legal succession, i.e. without transfer of rights and obligations of the liquidated legal entity to others. Therefore, in case of liquidation of a legal entity its rights and obligations cease.
According to article 104 of the civil code of Ukraine and article 59 of the HC of Ukraine a legal entity may cease to exist by liquidation or reorganization.
Liquidation of enterprises can be divided into voluntary and involuntary.
Voluntary liquidation by the decision of the owner (owners) or authorized body, as well as in connection with the termination of the term for which was created by a business entity, or in the case of achieving the purpose for which it was created.
Forced liquidation by the decision of the court or economic court. Compulsory liquidation is the liquidation of an enterprise due to the recognition of its bankruptcy or cancellation of its state registration in the cases stipulated by article 27 of the Law on state registration.
Liquidation of an enterprise is a complex and lengthy procedure, realize that in the current legal field is quite difficult. The difficulty lies not only in the liquidation of the enterprise, but also in the lack at legislative level of some important procedural questions concerning the order of work of the liquidation Commission.
The decision on termination of a legal entity take its participants(1), the court or other authority in accordance with their competence. These structures are required immediately to give written notice of its decision to the body exercising the state registration. After receiving such notice, the state registration authority makes to the usr(2) the information that the legal entity is in the process of ending (part 1 of article 105 of civil code of Ukraine).
The provisions of this article of the civil code of Ukraine are aimed primarily at protecting the rights of creditors, which already at the initial stage can learn about the intentions of the legal entity terminating its activities as data usr open to the public. Such information will be useful to others, for example, potential contractors, workers.
In the event of liquidation of a legal entity must be created by the liquidation Commission. New to the legislation of Ukraine is the duty of confirmation by the body of state registration of the appointment of the Commission on the termination of a legal entity (liquidation Commission). In effect, this procedure consists in the fact that the representative of the legal entity applying to the state Registrar, according to last name and identification codes of the members and the Chairman of the liquidation Commission.
The body taking the decision on termination of a legal entity, establishes the procedure and terms of termination of the legal entity, subject to the requirements established by the civil code of Ukraine. The functions of the Commission for termination of legal entity may be entrusted to the management body of a legal entity (e.g. the Board).
Since the appointment of the Commission on the termination of a legal entity (liquidation Commission) to terminate the powers of other bodies to manage the Affairs of such legal entity. These functions pass to the liquidation Commission. The legal capacity of a legal entity is realized through the Commission, and the actions of the Commission shall be deemed as actions of the legal entity. The Board performs legally significant acts, including acts in court on behalf of a legal entity and creates it directly for rights and responsibilities.
Notice of termination of a legal entity and the procedure and deadline for submission of creditor claims are published by those print media that publish information about state registration of legal entities.
The Commission is taking all possible measures to identify creditors (the publication of the advertisement in the press, posting information on sites on the Internet, etc.). In addition, the Commission shall notify in writing the creditors about the termination of a legal entity.
- order, order the liquidation of the state, municipal or private enterprise;
- report of meeting of founders with the elimination of hasalmost, etc.
When you eliminate hasalmost are especially relevant to this type of organizational-legal forms of business entities.
- to place in the press organs of the announcement (notification) concerning liquidation and on the procedure and deadline for submission of creditor claims;
- explicit (known) creditors to notify personally in writing (in the terms established KHK of Ukraine or a special law) to liquidate the company;
- to take the necessary measures to recover receivables of the liquidated economic entity;
- to assess the property of liquidated economic entity;
- to make settlements with creditors;
- make a liquidation balance and submit it to the owner or body that appointed the liquidation Commission.
The accuracy and completeness of the liquidation balance must be verified in the manner prescribed by law. The scheme of liquidation of the enterprise is represented in Fig.1.
Current regulations do not give a clear answer to the question of what constitutes a liquidation balance sheet and on what date it needs to be made. In order to draw some conclusions, below are a few definitions of the term “liquidation balance sheet” contained in the Ukrainian legislative and normative acts.
Article 111 of the civil code of Ukraine provides that the liquidation Commission at the end of the period for filing claims by creditors, is the interim liquidation balance sheet containing data on the property of the liquidated legal entity, list presented by creditors, and also data on results of their consideration.
The interim liquidation balance sheet is approved by the participants of the legal entity or the body that took decision on liquidation of the legal entity.
After completion of settlements with creditors the liquidation Commission makes up a liquidation balance which is approved by the participants of the legal entity or the body that took decision on liquidation of the legal entity.
The property of the legal person remaining after satisfaction of creditors ' claims is transferred to its participants, unless otherwise stipulated by the constituent documents of the legal person or the law.
This way, article 111 of the civil code of Ukraine stipulates preparation of the liquidation Commission, after the expiry of two liquidation balance sheets - interim and liquidation to the claims of creditors.
A business entity is considered liquidated from the date of entry into the state register of record about the termination of its activities. Such recording shall be paid after approval of the liquidation balance in accordance with the requirements of part 7 of article 59 of Ukraine HC.
Article 20 of the Law on hasobserved provided that the liquidation Commission shall draw up a liquidation balance and submit it to the higher authority of the company or body that appointed the liquidation Commission. The accuracy and completeness of the liquidation balance shall be confirmed by auditor (audit firm)
The law on accounting (item 8 of article 8) stipulates that the responsibility for the accounting hotparty related to the liquidation of the company, including the valuation of the assets and liabilities of the company, drawing up the liquidation balance sheet and the financial statements is imposed on the liquidating Commission which is created in accordance with the law.
Thus, from the above legislative documents can be concluded that a liquidation balance sheet shall be prepared at the completion of the liquidation procedure, i.e., after inventory, property valuation, settlements with debtors, the repayment of the debt. The procedure of registration of taxpayers, provides that, for deregistration, in case of acceptance by founders (participants) of the legal person, the competent authorities or court decision on the termination of the legal person, legal entity, Chairman of the Commission on the termination of the (liquidator, liquidation Commission) or the person responsible for payment of tax liabilities or tax debt of the taxpayer in case of liquidation of the taxpayer shall:
- a 3-day period from the date of entry in the unified state registry of information about what a legal entity is in the process of termination, to provide to the state tax service (hereinafter - STS) in which the taxpayer is registered, the following documents:
- statement on the termination of the taxpayer at f. № 8-OPP, the date of which shall be recorded in the journal f. No. 6-OPP;
- original certificate for f. № 4-OPP;
- a copy of the administrative document (decision) of the owner or body authorized by the constituent documents of liquidation;
- a copy of the administrative document on education of the liquidation Commission.
The reporting period for the compilation of the liquidation balance of the liquidated enterprises in accordance with article 13 of the Law on accountancy, is the period from the beginning of the year before the decision to liquidate the company.
The preparation of the interim liquidation balance sheet at the date of inclusion in the unified state register that the legal entity is in the process of termination can be regarded as a reflection of the property status of enterprises to the realization of its assets and the implementation of any expenses by the liquidation Commission.
The interim liquidation balance sheet contains data on composition of property of the liquidated legal entity, list presented by creditors and also results of their consideration. This balance reflects the rights and obligations of a legal entity at the time the decision on liquidation and summarizes the data, based on which payments will be made with creditors.
In the case of liquidation its assets shall be measured at the net realizable value, and the distribution of assets and liabilities in working capital (current) and non-current (long-term) loses its meaning, it is a principle of financial reporting, and as a continuity, in this situation does not apply.
In General, the assessment of liquidated enterprises mainly lies in bringing the value of the assets to the value of their possible implementation and recognition of additional obligations (for example, severance payments to employees) or decrease in provisions for reimbursement of future expenses arising from the company in connection with the decision on liquidation. As a rule, the assessment of the subject inventory, fixed assets and liabilities.
Inventories are stated at the net realisable value for each unit of inventories less the expected sale price of the planned costs of completion and sale.
Before drawing up the liquidation balance sheet is necessary to revise the inventory value based on the requirements of national standards of bookkeeping.
As the materiality threshold for the revaluation or reflection of impairment of fixed assets can be made variable, equal to 1% of net profit (loss) of the company, or the value, equal to a 10% deviation of the residual value of fixed assets to their fair value.
Pereotsenka the initial value and depreciation amount of fixed assets is determined by multiplying, respectively, the initial value and depreciation amount of fixed assets on the revaluation index. The revaluation index is determined by dividing the fair value of the revalued object to its residual value.
The amount of the revaluation (devaluation) of the cost and depreciation of property, plant and equipment is determined as the difference of these parameters before and after application of the revaluation index.
If the residual cost of the object equal to zero, it overestimated the residual value is determined by adding the fair value of this object to its initial (revalued) value without changing the amount of wear of the object.
Revaluation surplus cost and depreciation reflects the increase in initial (revalued) cost and accumulated depreciation of property, plant and equipment, and the amount of reduction of cost and wear - reduction of the initial (revalued) cost and accumulated depreciation. The difference between the amount of the revaluation surplus cost and the revaluation surplus depreciation is credited to the raising of additional capital, and the difference between the amount markdown value markdown of the amount of depreciation included in costs.
In the case of availability (on the date of the regular (last) revaluation surplus on property, plant and equipment) over the previous mark-downs of the facility and losses from reduction of its utility over the sum of the previous gooseneck (indexing) its residual value and benefits from the renewal of its usefulness from the date of the balance sheet of this object the sum of the regular (last) revaluation surplus, but not more than said excess is included in the income of the reporting period, and the difference (if the amount of the next revaluation surplus is greater than the specified excess) is directed to increase other additional capital.
In the case of availability (on the date of the next (final) write-downs of property, plant and equipment) over the previous gooseneck (indexing) the residual value of the property and benefits from the renewal of its utility over the sum of the previous mark-downs residual value of this object and losses from reduction of its utility the amount of the next markdowns, but not more than said excess is directed to the reduction other additional capital, and the difference (if the amount of the next markdowns more of said excess) shall be included to expenses of the reporting period.
Excess amounts from previous gooseneck (indexation), together with the amount of the resumption of the utility over the amount of impairment and previous mark-downs residual value of previously revalued items of fixed assets that have been disposed, is reflected on the loan account of the undistributed profit with simultaneous reduction of additional capital.
The person responsible for payment of tax liabilities or tax debt of the taxpayer in case of liquidation of the taxpayer are:
- regarding liquidation of the taxpayer, the liquidation Commission or other body that carries out the liquidation according to the legislation;
- relative branches, other separate divisions of the liquidated taxpayer - a taxpayer;
- with respect to cooperatives, credit unions, societies of owners of housing or other collective farms - members (shareholders) jointly and severally;
- with respect to investment funds - an investment company managing such investment Fund.
The procedure of settlement with creditors in case of liquidation of a business entity, provides that;
- the claims of the creditors by liquidating the entity are met from the assets of that entity, unless otherwise provided in the HC of Ukraine and other laws;
- ocherednost and procedure of satisfaction of creditors ' claims are determined by article 112 of the civil code of Ukraine;
- claims that are not satisfied due to the lack of property of the entity, claims not recognized by the liquidation Commission if the claimants within one month after receipt of notification of full or partial rejection of the claim does not go to court with the corresponding claim and the claim in satisfaction of which the court denied the creditor, are extinguished;
- the property remaining after satisfaction of creditors ' claims, is used at the direction of the owner.
Payment to creditors of the liquidated legal person is made in the order of priority established article 112 of the civil code of Ukraine, according to the interim liquidation balance, starting from the date of its approval, except for creditors of the fourth turn, payment which are made after one month from the date of approval of the interim liquidation balance.
According to article 112 of the civil code of Ukraine in case of liquidation of a solvent legal entities of requirements of its creditors shall be satisfied in the following order:
- firstly, the requirements for compensation for harm caused injury, other health damage or death, and claims of creditors secured by pledge or otherwise;
- secondly, the requirements of workers related to labor relations, the author's claim about a payment for the use of the result of his intellectual, creative activity;
- in the third place the requirements regarding taxes, charges (obligatory payments);
- in the fourth turn met all other requirements.
Requirements one queue are satisfied proportionally to the amount of claims held by each creditor of the queue.
In case of refusal of the liquidation Commission to satisfy the requirements of the lender or evasion from their consideration, the creditor is entitled to the approval of the liquidation balance of the legal person to apply to court with a claim to the liquidation Committee. The decision of the court the creditor's claims may be satisfied at the expense of the remaining property after liquidation of a legal entity.
The creditor lodged after the expiry of the deadline set by the liquidation Commission for their presentation, are satisfied from property of the liquidated legal person remaining after satisfaction of creditors ' claims in a timely manner.
Claims of creditors that are not recognized by the liquidation Commission if the creditor within one month after receipt of notification of full or partial refusal of the recognition of his claims was not addressed in court with the claim requirements which satisfaction according to the court decision the creditor is denied, as well as requirements that are not satisfied due to the lack of property of the liquidated legal entity, are extinguished.
At companies funds belonging to the society, including the proceeds from the sale of its property at liquidation, after calculations on the remuneration of persons working on conditions of employment, and fulfillment of obligations before the budget, banks, owners of bonds issued by the company and other creditors, are distributed among the shareholders in the manner and on the conditions provided by the Law on hasobserved and the founding documents, in the 6-month period after the publication of information on its liquidation.
The property transferred by members of society for use, is returned in kind without compensation.
In the event of any dispute regarding payment of the society funds are not subject to distribution between the parties to resolve the dispute or to the creditors of the relevant guarantees.
In case of insufficiency of monetary funds of a liquidated legal entity, with the purpose of satisfaction of creditors ' claims, the liquidation Committee sells the property of a legal entity.
The liquidation balance, liquidation Commission after the payment of debts of the enterprise. It should not include information on receivables and payables.
Consequently, the liquidation balance shall be prepared by the Commission after completion of settlements with creditors. It lists assets (property) remaining after settlement with all creditors. This balance must be approved by the participants of the legal entity or the body that took decision on liquidation of the legal entity.
The property of the legal person remaining after satisfaction of creditors ' claims is transferred to its participants, unless otherwise stipulated by the constituent documents or the law. For example, PP. 7.11.11 of the Law on profits tax provides that in case of liquidation of a non-profit organization its assets shall be transferred to another non-profit organization of corresponding kind or to be enlisted in the budget income.
A legal entity loses its rights recognized and eliminated from the date of entering the record on its termination to the unified state register.
The concept of “zero” liquidation balance sheet is very controversial, as some acts provide that the assets remaining after the satisfaction of claims of creditors, used as directed by the owner or transferred to participants (founders). Consequently, the liquidation balance sheet may contain certain assets and liabilities and, of course, he doesn't always have to be “zero”.
In case of voluntary liquidation of the enterprise all the issues should be resolved by the owner, including regarding the remuneration of the persons who will be involved in the process of liquidation. The owner of the company with members of the liquidation Committee may be:
- labor relations (if the liquidation will be entrusted to the management body of the enterprise or the head);
- civil relations (in other cases).
If the liquidation carries out the management body of the company or the Manager, the liquidation procedure will be carried out within the scope of their job functions. That is, they will continue to work within the employment relationship that had formed, until the full completion of the liquidation procedure.
This option has significant disadvantages. First, paid the salary (in this case the remuneration payable to the members of the liquidation Commission) shall be taxable for all taxes and fees. Secondly, there is a need in the accrual of accounts payable (including taxes and duties), and therefore, the enterprise has no opportunity to withdraw from the account in the Supervisory authority until the completion of the liquidation procedure.
To pay for the services of members of the liquidation Commission will have to advance as an advance payment for civil contract or within the labor agreement (earning all taxes and fees). However, in such a situation it is difficult to predict the period of work of the Commission, and hence the amount of the award. Consequently, members of the liquidation Committee should know in advance how and to what extent they will be paid for this type of work.
The possibility of termination of the employment contract concluded for an indefinite period and fixed-term employment contract before expiry of the validity period specified in item 1 of part 1 of article 40 of the Labor code of Ukraine in case of changes in the organization of production and labor. In the paragraph under the changes in the organization of production and labour is understood and liquidation of the company.
Dismissal of employees in accordance with claim 1. part 1 of article 40 of the Labor code of Ukraine, is the termination of the employment contract on the initiative of owner or authorized body. Therefore, such dismissal should be subject to appropriate safeguards, rules and procedures established by the legislation of Ukraine.
During the liquidation rules of section 1 paragraph 1 of article 40 of the Labor code of Ukraine may apply and when, after the cessation of its activities at the same time formed a new company. In these cases, the employee has no right to demand his restoration on the job in the newly formed enterprise, if he wasn't transferred there in due order.
Article 49-2 of the Labor code of Ukraine provides that on the forthcoming dismissal of the employee should personally notify not later than 2 months.
This article does not require registration in writing. However, to avoid possible disputes regarding the fact of notice or of its content, it is advisable to do this in writing or to communicate it to an employee under the painting. If the worker is absent, then it is possible to give a receipt (send by registered mail) a warning at the place where he is.
During the term of warning of subsequent dismissal, the employee must perform their duties, adhere to work rules.
Zakonodatelstvo not prohibited during the period of notice to terminate the employment agreement on other grounds.
Current legislation does not provide exceptions to the notice period of the employee of the impending dismissal time finding it in the vacation or period of temporary disability.
In the event of termination of the employment contract on the grounds specified in clause 1 part 1 article. 40 Labor code of Ukraine, to the employee, in accordance with article 44 of the Labor code of Ukraine, shall be paid severance pay in the amount of not less than average monthly earnings. Thus, in accordance with article 116 of the Labor code of Ukraine, the payment of all sums owed to employee from the company, on the day of dismissal.
If the worker in day of dismissal did not work, then these amounts must be paid not later than the day following presentation of the requirement about calculation.
According to article 47 of the Labor code of Ukraine, the owner or authorized body is obliged in day of dismissal to give the employee a properly executed workbook and a copy of the order for dismissal from work.
According to article 233 of the Labor code of Ukraine in case of violation of the legislation on remuneration of labour, the employee has the right to address in court with the claim about recovery of due wages without constraint in any period. Therefore, to debt on an unpaid wages Statute of limitations does not exist and no right to write off said debt.
After settlement with creditors in the enterprise there might be situations when:
- the value of the property enough to repay the debt to founders on instalments in authorised capital;
- the value of the property is insufficient to repay the debt to founders on instalments in authorised capital;
- the value of the property exceeds the debt to founders on instalments in authorised capital.
As the property remained after satisfaction of requirements of all creditors of the liquidated enterprises is transferred to its founders, unless otherwise provided by the constituent documents of the legal person or any settlement of accounts with the participants is the final stage of liquidation.
The private property of the dissolved company are transferred to the owner or used on his behalf.
The property of collective enterprise and shared between the participants (shareholders) of the company in the manner prescribed by Law