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Nominee director and founder risks. Who is a nominee director

Do I need to admit that my firms? Or admit that I am a fictitious director and founder? What is my responsibility? Will I have to pay the debt with my property or will a fine be imposed? Please tell me!
Hope

Hello

Even if you admit it, this does not relieve you of responsibility - formally, you are still the general director, and you are responsible for all events in the company.

The fact that the rest of the firms have been liquidated is good, in principle, in case of something, it does not exclude the responsibility of the founders or the general director, and even more so in an existing company.

Through the court, there may be liability for controlling persons if they are proven guilty.

Moreover, such liability is also provided for by the Civil Code, and not only by the Federal Law on Bankruptcy

Civil Code of the Russian Federation Article 53.1. Responsibility of a person authorized to act on behalf of a legal entity, members of the collegial bodies of a legal entity and persons determining the actions of a legal entity
1. A person who, by virtue of law, otherwise legal act or founding document legal entity is authorized to act on its behalf, is obliged to compensate, at the request of the legal entity, its founders (participants) acting in the interests of the legal entity, the losses caused through its fault to the legal entity.
A person who, by virtue of a law, other legal act or constituent document of a legal entity, is authorized to act on his behalf, is liable if it is proved that in the exercise of his rights and the performance of his duties he acted or, including if his actions (inaction) did not correspond to the usual conditions of civil circulation or ordinary entrepreneurial risk.
2. The responsibility provided for by this article shall also be borne by members of the collegiate bodies of a legal entity, with the exception of those of them who voted against the decision that caused losses to the legal entity, or, acting in good faith, did not take part in the voting.

But if we talk about the fact that you are a nominal director, even criminal liability is not excluded in the end.

Article 173.1. Illegal formation (creation, reorganization) of a legal entity

1. Formation (creation, reorganization) of a legal entity through nominees, as well as representation to the body carrying out state registration legal entities And individual entrepreneurs, data, resulting in entering into a single State Register legal entities information about nominees, - Note. In this Article and Article 173.2 of this Code, nominees are understood to mean persons who are founders (participants) of a legal entity or management bodies of a legal entity and by misleading or without whose knowledge data about them were entered into the unified state register of legal entities, as well as persons who are the governing bodies of a legal entity that do not have the purpose of managing the legal entity.

Of course, now this case may not be, but it is not necessary to give them information for which they can catch on, you can only create more problems for yourself in the end.

Moreover, it’s not a fact that you have any evidence left, so to speak, of your rating.

From a legal point of view, such a position as a “nominee director” is not a violation. Anyone, including shareholders, can be appointed to the position of nominee director. Such a director is limited both in his rights and in his duties. He is obliged to coordinate his actions with the administration and perform only what he is instructed to do. As a rule, he has the right to sign internal documentation, or documents that the employer gives him. In the article, we will consider what kind of responsibility of a nominee director is provided.

When a company needs a nominee director

The services of a nominee director may be required in the following cases:

it is required to hide information about the actual owner, or the person who actually manages the company;
it is necessary to maintain confidentiality in ongoing transactions;
the owner of the company is not located in the Russian Federation, or is not a resident of the Russian Federation, and the company needs management;
other reasons.

Important! hallmark position of "nominee director" is that for all the actions performed by the real management, the fictitious leader is responsible. This is due to the fact that it is difficult to punish the real owner of the company, therefore, a person who, in this moment holds office and signs documents.

What is the responsibility of the nominee director

Important! There are two types of liability for persons holding the position of nominee director: administrative and criminal.

Administrative responsibility of the nominee director

If it is proved that the powers of the head of the company are fictitious, then the easiest type of administrative responsibility will be a penalty under Art. 14.25 Administrative Code of the Russian Federation. In this case, liability is provided for providing unconfirmed information when entering into the Unified State Register of Legal Entities. It's about O:

passport data;
place of registration;

In this case, the nominee director faces liability in the form of a fine of 5,000 to 10,000 rubles. In case of a repeated violation (a similar violation that was committed within 1 year from the date of the previous liability), the penalty is already in the form of disqualification for a period of 1 to 3 years.

Criminal liability of a nominee director

The fictitious leader will also arouse the interest of the bodies involved in criminal investigations. If the nominee director presented a passport for inclusion in the Unified State Register of Legal Entities or received an appropriate power of attorney for this, then he faces punishment under Art. 173.2 of the Criminal Code of the Russian Federation.

In this case, the nominee director may face the following:

fine up to 300,000 rubles;
penalties depending on the income of the violator for a period of 7 to 12 months;
correctional labor for up to 2 years;
Compulsory work for a period of 180 to 240 hours.

in the event of the above violation, liability may be imposed not only on the fictitious director, but also on the nominal founder.

Criminal liability is provided not only for the nominee director himself, but also for the person who used his passport. In this case, violations can be as follows:

obtaining a passport free of charge or for a fee;
presenting a stolen passport as proof of identity;
using the trust of the passport holder for criminal purposes.

In case of these violations, punishment is provided for all persons who committed these violations, that is:

real leader;
company employee;
a lawyer of a third-party company that provided services for the search for a nominee director.

Behind said violations the punishment for a nominee director will be more severe:

a fine of up to 500,000 rubles;
forced labor for up to 3 years;
a fine equal to the offender's income and a period of 1 to 3 years;
imprisonment for up to 3 years.

Important! As grounds for punishment, it will be sufficient to prove the existence of a fictitious director.

How can you tell if a company has a nominee director?

Workers tax office during regular raids to verify the company's addresses, suspicious facts may be found. Companies are required by law to report the address of their office to the tax office. In case of violation, the director will also be checked, and determining his fictitious status is not difficult.

Law enforcement agencies are also not required to apply complex schemes to identify violators. To do this, just enter Register of Unified State Register of Legal Entities and discover circumstantial evidence of violation. These include:

Specifying the mass registration address. This is most typical for one-day companies, which means that the probability of a nominee leader in such a company will be high.
An individual is registered simultaneously in several companies. This will indicate a violation, especially if the companies are located in different settlements, and the companies have completely dissimilar activities.
Inability to locate the nominee leader. This can be revealed when visiting representatives of the authorities of the address of registration.

How to avoid liability for a nominee director

The reasons why citizens can get a job as a nominal leader can be completely different. One of them is getting an easy income. A person can also agree to a nominee position if he wants to help his friend, relative, who for some reason cannot register the company for himself. A person can become a nominal leader without his consent, for example, if he lost his passport, and scammers used it.

As a rule, persons who hold the positions of nominal leaders for completely different reasons do not attach importance to what kind of responsibility they may incur. However, the sanctions for such violations are varied and can range from an administrative penalty to imprisonment. At the same time, fines can be several hundred times higher than the remuneration received by face value.

Nevertheless, there is a way out of the situation, for this it is necessary to choose the right position and combine it with competent actions. If a citizen's passport is lost or stolen, then it is worthwhile not postponing to report this to the authorities. This will allow you to insure yourself and confirm your non-involvement in the work of any company.

If the decision to take the position of a nominee director is conscious, then the way out of this situation may be different. A criminal prosecution can be terminated by taking the right defense. They may be released from criminal liability on the following grounds:

repentance;
compensation for damage;
disease of the offender;
lapse of time;
situation change;
other grounds.

Vladivostok, May 2013

PRESS RELEASE

Do not expose yourself to the risk of being held accountable!

In recent years, there has been mass registration firms, the heads of which are individuals only formally - these are the so-called "nominee directors".

As a rule, such a person cannot explain what the organization does, what contractual relations are built with counterparties, how many employees it has, what positions the employees hold, what positions they hold labor obligations where workplaces, warehouses and other premises are located, how the organization is managed, what documents are drawn up.

Who is a nominee director?

“Nominee director” is not a legal concept, it is essentially just a figurehead who performs actions in the interests of the real owner of the company.

"Nominee Director" is appointed when there is no intention to pay tax payments to the organization, it is necessary to legalize the proceeds obtained by criminal (fraudulent) means, to carry out several financial and economic transactions and transfer through accounts credit organizations large sums of money without paying taxes.

What should residents of the region know about in order not to become a “victim” of scammers?

REMEMBER!

If you have been appointed a "nominee director", you should not think that after the expiration of the term of nominal leadership of the organization and the receipt of remuneration for such "directorship", you will avoid liability. It is trustworthy to believe that if you do not understand (do not know) the consequences of your actions when you put your signature on documents on state registration, sign bank documents, civil law contracts and distribute powers of attorney to unfamiliar persons, then you can avoid liability.

From a legal point of view, you are the head of the organization, and the concept of "nominee director" is absent in the legislation. Even if you call yourself a "nominee director", this does not relieve you of liability from a legal point of view.

What consequences can come if you are not aware of your rash actions.

You may well be drawn into fraudulent tax evasion schemes, which in Russia provide for both liability for a tax offense and criminal liability.

The public danger of evading taxes and fees is the deliberate failure to fulfill the constitutional obligation of everyone to pay legally established taxes and fees.

Methods of tax evasion can be both actions in the form of deliberate inclusion of deliberately false information in the tax return, and inaction, expressed in the deliberate failure to submit a tax return.

REMEMBER! You personally sign the tax return, which means that YOU will have to answer.

Inclusion in a tax return or in other documents, the submission of which is mandatory, of deliberately false information should be understood as the deliberate indication in them of any data that does not correspond to reality about the object of taxation, the calculation of the tax base, the presence tax incentives or deductions and any other information affecting the correct calculation and payment of taxes and fees.

REMEMBER!The easy money that “nominee directors” receive for registering a legal entity turns into liability determined by the Legislation Russian Federation for tax offenses and criminal offenses related to non-payment of taxes to the Russian budget.

KNOW!

Citizens who choose to give their passport for cash reward should know that from 19.12.2011 two new offenses were introduced into the Criminal Code of the Russian Federation (Article 173.1 of the Criminal Code of the Russian Federation, Article 173.2 of the Criminal Code of the Russian Federation). In the event that an individual provides third parties with a document proving the identity of a citizen for the formation (creation, reorganization) of a legal entity, criminal liability.

Supreme Court The Russian Federation, considering the practice of application by the courts of criminal legislation on liability for tax crimes, in the Plenum Resolution of December 28, 2006 N 64 noted the following.

The subjects of the crime provided for by Article 199 of the Criminal Code of the Russian Federation may include the head of the organization who signed the tax return.

The subjects of the crime may also include persons who actually performed the duties of the head, accountant as performers crimes. If these persons have agreed in advance on the joint commission of actions aimed at tax evasion, the crime committed by a group of persons by prior agreement

Other employees of the organization making out, for example, source documents accounting, may, if there are grounds for this, be brought to criminal liability under the relevant part of Article 199 of the Criminal Code of the Russian Federation as collaborators of this crime (Part Five of Article 33 of the Criminal Code of the Russian Federation), who deliberately contributed to its commission.

A person who organized the commission of a crime under Article 199 of the Criminal Code of the Russian Federation, or who persuaded the head, accountant of an organization or other employees of this organization to commit it, as well as assisted in the commission of a crime with advice, instructions, etc., shall be liable, depending on what he did as organizer, instigator or accomplice under the relevant part of Article 33 of the Criminal Code of the Russian Federation and the relevant part of Article 199 of the Criminal Code of the Russian Federation

In cases where a person, for the purpose of evading taxes and (or) fees, falsifies official documents of an organization that grant rights or exempt from obligations, as well as stamps, seals, forms, committed by him, if there are grounds for this, entails criminal liability in the aggregate crimes under Article 198 or Article 199 and Article 327 of the Criminal Code of the Russian Federation.

In cases where a person exercises legal or actual management of several organizations and, at the same time, evades taxes and (or) fees in each of them, then his actions, if there are grounds for this, must be qualified on the basis of the totality of several crimes provided for by the relevant parts of Article 199 Criminal Code of the Russian Federation.

WHAT ELSE THREATS YOU?

There is also a threat for the “nominee director”, under pressure from real business owners, to subsequently confirm the actions of their organization, which are not actually carried out by it, during inspections by regulatory and law enforcement agencies.

Confirmation of actions that are not actually carried out by the organization, transfer the nominee participant to the composition of real business entities with all the ensuing consequences in the form of prosecution by regulatory and law enforcement agencies, including real additional charges of taxes, penalties and penalties for tax audits and their recovery in the budget. And already at this stage it is not possible to say: "wait, I'm just a nominal director"!

HOW CAN EVERYTHING REALLY TURN OUT?

By the effective verdict of Kirovsky district court Astrakhan dated July 02, 2009 (cassation ruling dated September 10, 2009 No. 22-3246-2009), a guilty verdict was passed against a group of 12 persons. The defendants were found guilty of committing a number of crimes: false entrepreneurship, the manufacture and sale of forged payment orders and checks, the manufacture and sale of forged official documents, committed in order to hide another crime, fraud committed by prior agreement by a group of persons on a large and especially large scale.

As part of the criminal case, it was established that in March 2005 Yu.F. Lee, who is the CEO of Likom LLC, created an organized group for the purpose of cashing out Money and counterfeit checks and value-added tax evasion of counterparties. Members of the group since March 2005. to September 2007 created 9 commercial organizations in Astrakhan, including Millennium LLC, Stealth LLC, Argon LLC, Legrin LLC and Razvitiye LLC without the intention to carry out entrepreneurial activities. These false companies were registered for citizens who lost their passports.

Information regarding “fake firms”, including the circumstances established by court verdicts, were taken into account by the tax authorities during on-site tax audits, as a result of which the audited persons were denied the right to VAT deductions and the inclusion of transaction amounts in income tax expenses with fake companies.

HELP YOURSELF!

Do not agree to the persuasion of unknown persons, even if your friend or girlfriend or relative introduced you to persons who offer you to be the director of the company.

Don't think it's "cool" or it will make you money. You are being deceived.

Do not give your passports to strangers and do not sign documents whose meaning you do not understand, even if you are told that nothing terrible is happening.

In order to avoid further negative consequences for yourself and your loved ones, if YOU realize that you have become a victim of scammers, contact any nearest tax authority at the taxpayer registration and accounting department.

Competent specialists of the tax authorities will help you!

You can fill out an application for the prohibition of the use of your personal data.

Application

Head of the tax office

from a citizen _________________________
(FULL NAME.)

Address: __________________________________

_________ ______________________________________
(document confirming the identity of a citizen)

N __________ from "___" __________ ___

Issued by ___________________________

STATEMENT

I beg not to use my personal data during the state registration of legal entities, as well as in case of changes related to entering information into the state register.

____________/__________/

(signature) (full name)

Today, almost everyone knows about the existence of nominal figures in business, but few really understand why they are needed and is it a scam? Let's figure out who and what position is appointed, a nominee director - what is it, how legal is it, and is it worth getting involved in this type of activity?

Rated service

When opening job offers, you probably noticed that there are companies that provide nominee services. What does it mean? Such companies contain a whole staff of individuals and legal entities who are appointed to certain positions, while they will have limited access to business information, a limited range of responsibilities and opportunities. For example, the responsibility of a nominee director allows him to sign internal papers and contracts.

What is it for

Nominee shareholder or nominee director - what is it and who needs it? If you do not take into account the illegal and illegal business, many companies periodically need a nominee director.

First example. There are two firms with one director. Between them there is a need to conduct some kind of formal documentary turnover. It is impossible to sign a contract between firms on behalf of one person. Here the nominal general director of one of the firms comes to the rescue, on whose behalf the papers will be signed.

Second example. For prestige, a company needs an account in an English bank abroad. The bank refuses to accept a resident of another country as an account manager. In this case, a third-party English clerk is hired, who will be able to open an account in his own name and manage it with limited capabilities.

Third example. When the founder of the company does not want to advertise his activities, and considers it to be defending himself from competitors.

Nominee Director

A nominal director - what it is and what it is for, it is clear from the listed examples. But there are other nominal positions. These are nominal shareholders and secretaries. Who is who?

Nominee director executes orders CEO or founder and manages the business in the direction specified in the agreement. Most often, a trustee works by proxy. This person has the right to sign and a limited range of powers - he enters into contracts that he is told, opens bank accounts, but does not know, for example, where the current office is located or in which bank the current account is located.

Nominee shareholder

A nominal shareholder is not a rare figure in the company. Often a part of the company's shares is registered in his name so that the real owner of the company does not appear in the state register of company owners. Of course, it is quite risky to transfer even a part of the shares into the hands of an outsider, therefore, a written agreement is concluded between the real shareholder and the nominee, according to which all dividends received are transferred to the true owner.

Nominee Secretary

This position, like the treasurer, chairman and some others officials it is used quite rarely and in cases where in some countries this or that position is obligatory, but it does not bring any benefit and necessity for business. An example of such a country is Panama. All three positions should be there.

What does a trustee get?

Work as a nominee director is paid for the time that a person spends in this position, as well as for the risks that he bears, being at such a high level career ladder. After all, there is always a possibility that the head of the business will perform some kind of illegal operation, thereby substituting the one who, according to the documents, is personally responsible for this.

Of course, this risk is very high, and therefore the work is paid quite high.

Most often, such nominee services are provided by law firms, or individual lawyers and lawyers who are able to assess the risk and know quite thoroughly the specifics of the work of the customer firm. One person is often a nominee director of 5 to 20 small companies.

Risks

An important point is the risks that a nominee director has during his work. Reviews say this post is a scam. Let's figure it out.

There is no such concept in the legislation of the Russian Federation, and the provision of such services is not considered illegal. The only thing that is prohibited is with the involvement of a nominee, but it is very difficult to prove legally that the hired director was a nominee. Therefore, the risks of a nominee director are extremely small.

Typically, the appointment occurs at the board of founders, hiring is documented, and any legal delays that arise in the course of work may appear, as in normal work CEO or founder.

Of course, when applying for a position as a nominee director, what it is, a person must first of all understand the risks. Especially with regard to criminal activity, for which a dummy figure is also often put at the head of the company. In general, when deciding on such an adventure, a specialist must clearly understand the specifics of what the company does, for what purposes he is hired, and what consequences for him the problems and risks that may arise in the process of managing the company may entail. Only in this case should you agree to this kind of work. Plus, a specialist must have a legal education so that he can understand the agreement that is being concluded with him.

Nominee Director - the formal head of the company, who, according to the papers, holds a high position, but does not participate in management. The role of a nominee director may involve a legal or individual. This practice is often typical for offshore companies. The reason for the involvement of the head - the desire to maintain confidentiality, as well as the desire to reduce taxes. The last factor is related to the fact that in many countries, if there is a majority of resident managers, the company can also be classified as a resident.

Nominee director and responsibility

It is important to be aware that working as a nominee director carries certain risks and falls under Article 173.2 of the Criminal Code. The appearance of such an article laid the foundation for the fight against fly-by-night companies seeking to circumvent the law in various ways. Previously, there was only one article of the Criminal Code of the Russian Federation (173), which was extremely inconvenient for practical application. Over time, two more supplementary articles appeared - 173.1 and 173.2.

The emergence of new laws allows law enforcement to act more harshly against persons providing services of a nominee director. Enterprises that are created for the commission of crimes, and not for the further conduct of activities, fall into the field of view of law enforcement officers. In this case, the organizers are held criminally liable.

Previously (until 2010) punishment had two forms:

Falsification of entries in the unified state register.
Conducting fraudulent activities.

Why is such a position dangerous?

The nominee director is primarily responsible for the illegal use of documentation for the purpose of forming (reorganizing) the company. Based on article 173.2, providing legal workers with personal documents (original, photocopy) for registration is considered a crime. The punishment is the following:

Penalties - up to 300,000 rubles.
Payment of the annual salary of the culprit.
Correctional labor - up to 2 years.
Mandatory work - up to 10 days.

In other words, it will not work to register a group of companies in your name with impunity - there is a danger of punishment.

The nominee director is often justified by the fact that the transfer of a passport is a violation only when registering a company for this document, followed by criminal activity. In practice, a crime can be committed very quickly. For example, it is enough to delay the salary of an employee for more than two months. In this case, a criminal case is initiated with the appropriate definition.

Other situations are also possible, when the services of a nominee director consisted in the transit of funds with their subsequent transfer to the “garbage heap”. In such a situation, additional taxes will be assessed and expenses deducted. Therefore, there is only one step before committing a crime. The main thing is to assess the risks.

How is the work of a nominee director calculated?

Many people naively believe that it is practically impossible to prove the fact of "dummy" management. This is wrong. The services of a nominee director are calculated in a short time, according to indirect signs. Often it is possible to identify the violator by simple "punctures", for example, in the absence of a person at the registration address. In case of suspicion, the operative can ask a number of questions regarding the name of the company or bank where the current account is opened, the volume of turnover, the tax base and other nuances. Ignorance of the basic points allows you to immediately identify the offender.

Results

Work as a nominee director- violation of the law, which can lead not only to a large fine, but also to more serious (criminal) liability.