Nominee director punishment. Refusal of the director (nominee director) from managing the company

When looking for a suitable job, many have come across the vacancy of “nominee director”. The position sounds respectable and the remuneration offered is decent. What makes this service particularly attractive is that you don’t have to do anything at all. Looks like a perfect job. But is everything as smooth as it seems? What pitfalls can you come across? What responsibilities may come with the formal management of a company?

Who is a nominee director

The nominee director of the organization is figurehead. He has a solid position, a representative office, a good salary, but is not the actual manager of the company.

To such activities Both legal entities and individuals can be involved. The practice of involving such a person is widespread not only in Russia, but also abroad.

Formal management is especially often used when opening companies in offshore zones or to maintain individual confidentiality. This tool is often used when, according to state laws, the management of a company can only be carried out by a person who has the status of a citizen of the country.

Why is it needed?

There are several most common reasons that necessitate the involvement of a fictitious manager:

Nominee Director provides the opportunity for the real owner not to “shine” under his name. For “selling” his name and passport data, the fictitious manager receives a worthy reward. At the same time, he is required to comply with confidentiality conditions and perform some simple functions.

Functional responsibilities of a fictitious manager

When hiring a nominal leader it is necessary to indicate the scope of his responsibilities. Such relationships are formalized by an agreement, which clearly states the powers of the fictitious director. Particular importance is given to the clause on property rights and the possibility of disposing of property.

Signing a contract most often accompanied by a power of attorney to the real owner, who, on its basis, can carry out any actions on behalf of the company.

If holding a fictitious position involves having a share of capital or shares in a given company, then they are formally transferred to the figurehead. That is, upon receipt of them, the nominal founder renounces in writing his rights to ownership and profit.

Typically, the formal manager is assigned the following responsibilities:

presence at important meetings and negotiations;
the right to sign contracts and other documents;
opening sets;
presence at the workplace for the agreed time.

Nominee leader fully accountable to the real owner. Therefore, any of his actions are agreed upon in advance. Without confirmation from the actual owner of the business, he cannot sign anything, be present anywhere, much less open accounts.

Depending on the purpose of hiring a nominal manager, his range of responsibilities also changes. The main thing is that he does not have the right to any independent actions regarding the management of the organization.

What to fear

The nominal director is in plain sight. He signs transactions, payment documents and even financial statements. If the hiring took place in a reputable organization whose goal is to expand the business or hide information about its real owners, the risk for the figurehead is not great.

A contractual relationship is signed with him, which describes not only his powers, but also his responsibilities. Often in a contract not only the total amount of remuneration is specified, but also incentive payments for certain actions. For example, signing a contract costs 3 thousand rubles, a payment document costs 500 rubles, and the like.

The contract says clear delineation of responsibilities and limited access of a figurehead to work with shares, large monetary and property transactions. That is, an “honest” business is planned, for which a formal representative is required. Under such circumstances, the fictitious director's risk of liability is minimal.

But if a formal manager is needed to create a fictitious company whose purpose is tax evasion, fraud and other shady activities, then responsibility will be higher than remuneration for “labor”.

A fictitious director is necessary precisely so that the real owner can evade administrative or criminal liability.

Therefore, if, despite the attractiveness of a vacancy, it reveals the creation of an illegal business, you should not agree to it. Unless the applicant is attracted to the fate of Fuchs - the formal director from the Golden Calf, who professionally served his sentence under any regime for the offenses of others.

How to identify a fake CEO

If we clearly consider the legal side of the issue, then a nominee director is one of the persons of the organization, who has legal responsibility. By signing documents, contracts, financial statements, such a “manager” records his agreement with their contents, so he will not be able to escape responsibility.

We will not consider a legitimate business where all actions of a front person are regulated by relevant contracts. Let's consider how to identify a fictitious director of a shell company that has come to the attention of the tax inspectorate or other law enforcement agencies.

Usually for such “setups” citizens, attracted by a substantial reward, agree. They are explained that there can be no criminal liability for nominal management, since the management of the company is carried out formally.

Most often from such a leader signing of constituent documents is required and personal information: passport, TIN and registration. Then he receives a monthly bonus without even appearing in the organization.

When operational investigative measures begin to be carried out, the first person contacted for clarification of circumstances is the director of the company. Calculating it is not difficult at all, since all information about it is reflected in the state register.

As a rule, such a person cannot give any intelligible answers to questions about the activities of the company, the number of employees, their work responsibilities, and interaction with other organizations. He has no idea how the company is managed and what documents are signed.

As a result, the fictitious manager is indirectly involved in shady dealings. For such “relative” participation specific criminal liability is provided. As a result, it is the fictitious director who will have to prove his innocence, since he may simply not know the real owners of the business.

In this situation, it is very difficult to prove your non-involvement in a criminal act. Therefore, verbal statements about: “That I didn’t sign anything! I didn’t participate in anything!” are a weak and difficult to prove argument.

What is the liability under the laws of the Russian Federation?

In Russian legislation there is no clear legal definition of the term “nominee director” or “servants of formal management”. But criminal liability is clearly provided for.

Article 173.2 precisely defines the penalties for citizens who handed over the original or a copy of their passport for registering an enterprise. Also responsible are the persons who issued a power of attorney allowing them to open and register a company on their behalf.

If a “nominee director” is found guilty under this article, he faces the following punishment:

collection of a fine in favor of the state in the amount of 100 to 300 thousand rubles;
a fine equal to the director’s average annual salary for a calendar year;
compulsory community service for the benefit of the state for no more than 240 hours, but not less than 180 hours;
forced recruitment of a “fictitious director” to work for a period of up to 2 years.

Such a punishment can hardly be called an “insignificant risk” for a small reward.

Article 173.1 provides for serious penalties for the illegal organization or liquidation of a legal entity. That is, a person who is not actually the founder of the company, but provided information about himself, which was then entered into the state register, is a criminal.

For such an act, the following punishment is provided:

At the same time, Russian legislation clearly defines citizens qualified as figureheads. And this is just a “nominee director”, that is, a person who does not actually manage the organization, but has “sold” his name.

If it turns out that the criminal act was committed by a group of persons, then the level of punishment increases significantly. A false defendant may be imprisoned for up to 5 years. This is a very expensive fee for their services.

There is no easy money and you have to pay for everything in this life. Before you agree to be a figurehead for a substantial reward, you should think about whether temporary income is worth imprisonment or significant fines. Don't be persuaded. Do not give your passport even to friends who are trying to persuade you to temporarily become the founder of a company. As soon as the first problems arise, the friends will disappear, and the fictitious director will have to personally bear responsibility for everything.

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Hello

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

The fact that the remaining companies were liquidated is good; in principle, if something happens, it does not exclude the liability of the founders or the general director - and even more so in an existing company.

Controlling persons may be held accountable through the court if their guilt is proven.

Moreover, such responsibility is provided for in the Civil Code, and not only in 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 collegial bodies of a legal entity and persons determining the actions of a legal entity
1. A person who, by virtue of the law, another legal act or the constituent document of a 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, losses caused through his fault to the legal entity .
A person who, by virtue of a law, another legal act or the constituent document of a legal entity, is authorized to act on its behalf, is liable if it is proven 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 normal conditions of civil turnover or normal business risk.
2. Members of the collegial bodies of a legal entity are also liable under this article, 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 dummies, as well as submission to the body that carries out state registration of legal entities and individual entrepreneurs, data, which entailed the entry of information about dummies into the unified state register of legal entities - Note. In this article and Article 173.2 of this Code, figureheads are understood as persons who are founders (participants) of a legal entity or management bodies of a legal entity and, through misrepresentation or without whose knowledge, data about them was entered into the unified state register of legal entities, as well as persons who are management bodies of a legal entity and who do not have the goal of managing the legal entity.

Of course, now this matter may not exist, but there is no need to give them information that they can cling to, you can only create more problems for yourself in the end.

Moreover, it is not a fact that you still have some evidence of your rating, so to speak.

To exclude any connection between two legal entities controlled by one person or company, nominee founders and directors are often involved. Outsiders who, for a small fee, will sign the necessary documents and, if necessary, appear in various authorities.

The risk here is two-sided. The nominee can be framed, but in his own interests he can also take advantage of the right to be the first to sign financial documents and conduct a transaction that is profitable for himself. Although practice shows that most often the parties still manage to arrange work for mutual benefit.

Reasons why a nominee founder is attracted

The services of nominee founders are in demand in several situations. First of all, when you need to avoid affiliation with the main organization, where the director or founder is the real owner of the business. After all, if he himself or his relative acts as the owner of the “daughter”, then the organizations can be recognized as interdependent in terms of. Which threatens close attention from inspectors to transactions between legal entities, as well as additional taxes based on market prices.

A nominal founder may also be needed for the main company, which the owner plans to “abandon”. For example, due to debts or the threat of raiding. Before this, he transfers all liquid property to another organization, installs a nominal founder (and director) in his place and forgets about it. Although, with subsidiary liability for tax debts, not everything is so simple (see box at the end of the article).

Another situation is when they resort to the services of a nominee when the real owner does not have the right to engage in entrepreneurial activity and does not want to put his full name. on any documents. For example, an official. Otherwise, he will not be able to use his administrative resource to create favorable conditions for his “pocket” organization.

A nominee director is most often used to evade responsibility.

The appointment of a nominee to the position of General Director may be due to several reasons. Firstly, it may be needed when registering a company and subsequently obtaining a license requires people with a certain higher education, which the real manager does not have.

Secondly, the use of a nominee director allows you to shift responsibility for questionable transactions onto him. For cashing out money, for creating fictitious expenses for the main organization, for trading without the use of cash register equipment, for paying “gray” salaries, etc. Tax, administrative and criminal liability as a result of the actions of legal entities rests with the general director (more on this below). Such denominations are called “poor quality”.

Who is usually involved as a nominee founder or director?

To reduce the risk of losing control over an organization registered as a nominee, the owner carefully selects persons for such candidates.

The main contenders are people who are not interested in running their own business. Those who have no intention of selling their share to third parties or the desire to independently manage the money if such an opportunity exists.

Friends, their relatives or other trusted persons. This is usually the most convenient option.

By verbal agreement, the authorized person carries out the necessary actions. It is easier to meet with such a person to resolve urgent issues. In this case, communication occurs without the involvement of intermediaries and specialized agencies.

The downside is that such relationships are based solely on trust, which one of the parties can take advantage of. For example, a nominee may borrow money from a company “on credit.”

Hired nominee founders and directors. The services of such persons are often purchased from specialized agencies whose main activity is legal consulting and accounting support for business. The latter are looking for denominations through advertisements on the Internet. The main condition for this is the absence of a criminal record and other problems with the law.

First, agencies send the client copies of passports of potential denominations by e-mail. This allows the owner to check the individual’s past personally. After which the agency employee will arrange a meeting with the person. As a rule, further cooperation with the nominee is built by the owner himself.

There are two negative points here. Firstly, the individuals offered as nominees may turn out to be massive. Since they do this for a living. Specialized organizations are rarely ready to provide a “pure” person. Most often, he is already a director or founder of at least two or three companies. Therefore, in the future, additional problems may arise with tax authorities, given that the inspectorates maintain “black” lists of such persons.

Secondly, employees of not only the client company, but also the agency that found him will know about the nominal relationship. And these are witnesses who can give evidence that is unfavorable for the client.

Of course, such special organizations claim that they guarantee security on this side. But such assurances cannot always be relied upon. In practice, there was a case when, during an inspection, operatives interrogated the nominee himself and seven agency employees. As a result, all the witnesses testified who exactly was the real owner and manager.

Also, offices that sell nominee services indicate in their advertising that the addresses of directors or founders at which a company can be registered are real. But even if this is true, it is not a fact that the denomination actually lives there.

So, in one of the cases, operatives decided to check the founder of the counterparty company to see if the participant was a nominee. It turned out that not only he, but also his sister lived at the indicated address. And she, in turn, explained that her brother’s whereabouts and type of activity were not known to her. Such testimony served as one of the proofs of the founder's nominee. As a result, the tax authorities accused the audited company of having connections with a fly-by-night company and won the legal dispute (resolution of the Federal Arbitration Court of the East Siberian District dated January 14, 2009 No. A19-8048/07-30-41-24-F02-6426/08, upheld by the ruling Supreme Arbitration Court of the Russian Federation dated April 29, 2009 No. 5301/09).

Students, pensioners, the unemployed, visitors from other regions, foreign citizens, homeless people. Such citizens, as a rule, are used for one-time operations - registration or liquidation of legal entities, as well as carrying out risky activities. They are most often found by organizations themselves that need a denomination, on the street or through friends.

The danger of attracting such persons is that they are often dispensable and disorganized people. A person can come to a meeting, take an advance and disappear forever. There are denominations with criminal records for whom banks often refuse to open accounts.

When using such persons, business owners most often hope that it will be problematic for controllers to find and interrogate the denomination. But practice shows that if a person really exists and, moreover, lives at the registration address, then it will not be difficult for inspectors to find him. In addition, even with little attention from government agencies to such citizens, they will most likely give evidence of refusal.

Denominations can be permanent or one-time

Nominees, whether founders or directors, can be used by business owners on an ongoing or one-time basis. This affects the organization of work with them.

Constant denomination. It is usually called “subscriber service denomination”. The fee for these services is low and in different regions of Russia ranges from 10 to 15 thousand rubles (see table). In this case, the nominee does not appear in the office, does not negotiate or in any other way participate in the activities of the organization. He does not keep any documents relating to the owner's business. They just bring him home documents to sign and from time to time ask him to drive to the bank or inspection office. There is no longer a separate charge for each visit; all services are included in the subscription service.

Cost of services of nominee directors and founders by regions of Russia, thousand rubles.

Type of service	Price
Type of service	Moscow	Saint- Peter- burg	New Sibirsk	Eka- terin- burg	Lower ny New city	Voro- tender	Vladi- East
Agent services provision of becoming lenition nomi- nala (dis- payment)	6-8	6-7	4-10	6-8	7-8	5-6	5
Nomi- cash on abo nent- com- alive- ni, per month	10-15	10-12	10	10	10	No data	No data
Departure to the inspectorate tion for primary Noah regi- country tions of a legal entity	2,5-3	Not paid separately, included in the cost of agency services
Departure to the bank to open tiya calculation- account or system bank topics client	3-5	2,5	4-10	1-2.5 depending bridge from the bank	1,5-2	1-2	0,5
Repeat- trip to the bank	2,5-4	1	3	1	1-1,5	1
Departure to nota- Rius	2,5-6	1-1,5	3-4	1		1-1,5
Departure to the bank for registration leniya debe- commercial cards	4-5	1-1,5	3-4	1-2.5 depending bridge from the bank		1

Typically, the nominee knows by sight only a few employees of the organization: for example, the real manager, who may not even be on staff, the deputy director, lawyer and chief accountant. Accordingly, the nominee accepts documents only from these people he knows.

One-time denomination. He is brought in for a short period of time to perform a specific legal procedure. For example, register a company. As soon as all the procedures are completed, the bank account is opened and all the necessary documents are received, the nominal director or founder is changed to a real one.

Also, a one-time denomination can help the owner in liquidating the company. This will save the business owner from wasting time on following all the necessary procedures.

The performance of one-time denominations is assessed depending on the type of service it provides to the owner. There is a separate fee for each departure (see table above). In most regions of Russia this is a fixed amount that does not depend on the location of the visit. But in some cities, for example in Yekaterinburg and Nizhny Novgorod, the cost of leaving a denomination to open a current account depends on the caution and diligence of a particular bank. In particular, the security service in some credit institutions very carefully checks information about their new clients.

Open-dated documents allow the business owner to maintain control

It is possible that a person, being a nominee director, will want to exercise his “managerial responsibilities.”

Thus, in the practice of one of the banks there was a case when the nominee director of a well-known client came to the bank with a payment slip. Moreover, the director was accompanied by two police officers. The bank operator did not immediately carry out the monetary transaction, but called the real owner of the business. As a result, it turned out that the trip to the bank was initiated by the law enforcement officers themselves. They managed to find out that the director is listed in the organization nominally, and there is money in the current account. The police decided to take advantage of this for personal enrichment.

What documents are required for insurance? To maintain the opportunity to personally manage the company, regardless of who is the nominee, business owners draw up a standard package of documents.

First of all, this is a general power of attorney to conduct business on behalf of a legal entity. Based on this document, the owner's authorized representative carries out management. In particular, does it represent? interests of the company in court, makes transactions on its behalf, manages and disposes of a bank account and has other powers.

Next, the business owner enters into an agreement with the nominee director to terminate the contract with a blank date. This allows the owner to dismiss the nominee director at any time and appoint any other one.

Often, the signed purchase and sale agreement for shares in the authorized capital is also dated only at the moment when the business owner decides to change the composition of the company’s participants.

But there are risks here that the transaction for the sale of a share may be declared invalid if it is not certified by a notary (Clause 11, Article 21 “On Limited Liability Companies”). At the same time, there is no guarantee that the nominee will agree to notarize the transaction at the right time. Or by this time the person may disappear altogether. After all, this is precisely what the owners are insuring against.

To avoid such risks, instead of a share purchase and sale agreement with an open date, an offer is drawn up in writing - an offer from a nominal participant to the real owner or a third party to buy his share in the authorized capital. After receiving the offer within the period established in the charter, the company can exercise the pre-emptive right to purchase the share being sold. In this case, the share purchase and sale transaction does not require notarization. This procedure is prescribed in paragraphs 5-7 and 11 of Article 21.

In addition, for security reasons, the business owner keeps all the seals and does not disclose information about the current account to the nominee. Moreover, if the nominal and the owner are actually located at different addresses, then the owner makes bank payments to the address of the first. Otherwise, the operatives, upon request of the IP address, will determine the address of the office from where the account is managed.

In this case, communication between the real owner (or his authorized representative) and the nominal value occurs most often from the number to which the anti-identifier is installed.

How can a nominee prove that he was forced to sign documents with an open date. Despite such precautions, the owner has the risk of claims from the nominee. In particular, if the latter appoints an examination that shows that the document on the sale of a share or dismissal was drawn up a long time ago, but dated to a recent date.

However, not every examination can establish the date of signing of documents. Firstly, if experts do not have comparative materials - original documents in which the inscription is made with the same paste, using the same stamp pad, the same ink or gel pen refill.

In addition, the later the documents are submitted for examination, the more difficult it is to draw conclusions. The ink contains actual volatile components, which evaporate over time, and the document being examined becomes uninformative.

Plus, the owner can declare that the document was deliberately aged by the face value through external aggressive light, thermal or chemical exposure. For example, the following signs may indicate “artificial” aging of a document:

pronounced “mirror” shine of the document;
invisible fine-grained structure of strokes;
the presence on the front and back surfaces of the sheet of numerous contaminants from toner layering, unclear display of characters;
the absence of some toner in the strokes - they seem to be smeared.

If such signs are detected, the expert can conclude that the document being examined was subjected to aggressive thermal effects. For example, heated it with an iron. Then the inspectors may suspect that the document is deliberately damaged by the face value in order to assure everyone that the document was drawn up much earlier.

The nominee, when signing documents, may slightly distort his signature

The nominee, for his part, can also insure himself against adverse consequences in advance.

Although he is more often interested in money issues than in guaranteeing security. Moreover, the legislation does not establish specific responsibility for nominal participation or management. Even the inspectors during interrogation are more concerned with the question of who is using the services of the nominees.

But if, for example, the nominee understands that the business owner is only going to shift responsibility onto him, then, as a means of insurance, he can:

use audio or video recordings of conversations with the owner;
provide evidence from witnesses that he acted on the instructions of another person;
sign documents in advance with a signature that is not exactly your own, slightly distorting it. The original signature is certified in advance by a notary, and at the right moment he declares that it is not his signature on the documents.

During interrogation, denominations often give “refusal” testimony

One of the effective methods of inspectors in exposing nominees in a company is their interrogation. At the same time, they can ask questions that a person without special education or qualifications cannot answer offhand.

In addition, inspectors can track where he actually lives, where he works, where he goes and with whom he most often meets. As a result, it most often turns out that the nominee does not have the education that would allow him to carry out complex operations related to the company’s activities. Or the person does not actually appear in the organization in which he is a director.

For example, not long ago the following case occurred: the nominal director of one of the companies was a pensioner - a relative of the owner. Tax officials traced that all the money from this organization went through transit to a one-day operation. They filed claims and assessed additional taxes. As expected, during the consideration of objections to the inspection report, where the relative was brought by the owner himself, she was unable to explain anything intelligibly. The interrogation report stated: yes, I was the director, I only remember here, I don’t remember here, but in general I’m sitting with my grandson now - leave me alone. The case is still at the appeal stage with the inspectorate.

To avoid interrogation of the nominee director, the owners do this. A power of attorney is issued in the name of the trustee for the right to perform administrative actions on behalf of the director. And it is this person who already answers the inspectors’ questions. Most often, these are lawyers or tax consultants. At the same time, the absence of the director himself is explained by his illness.

What threatens the owner and the nominee if their nominal status becomes known to the inspector

If the real owner represents the interests of the company on the basis of a power of attorney, then he is not responsible for the tax obligations of the legal entity.

Criminal liability for falsification of the Unified State Register of Legal Entities will also be borne by an official of the company, that is, a nominal director (Article 171 of the Criminal Code). The punishment in this case ranges from a fine to imprisonment for up to six months.

Also, the nominee director or founder will be held liable if they participated in the illegal actions of the company, for example, tax evasion (Article 199 of the Criminal Code of the Russian Federation) or forgery of documents (Article 327 of the Criminal Code of the Russian Federation).

As for the real business owner, he faces little threat. For example, even in cases with one-day cases, the courts indicate that refusal statements are beneficial to directors and founders in order to avoid liability ().

However, if there is real evidence that the owner took part in the business activities of the company, then part of the liability in court may be assigned to him.

Sometimes attracting nominees does not help to avoid subsidiary liability in bankruptcy

In case of bankruptcy, the founder and director jointly and severally bear subsidiary liability for the company’s obligations (clause 4 of article 10 “On insolvency (bankruptcy)”). Therefore, if the owner sees that additional accruals can lead to bankruptcy, then often all the company’s property is transferred to nominees.

But risks will remain if it is discovered that it was during the reign of this director or founder that the company went bankrupt. Although documents that allow us to determine the period of negative actions are often simply lost.

As practice shows, such asset protection measures do not always work. Thus, in one of the cases, inspectors assessed additional taxes to the company for the last two years of activity. The owner transferred his duties as director to a nominee. However, the bankruptcy trustee proved that the transaction between the founder and the nominee was fictitious. Then, not finding the company’s property, he filed a petition in court to hold the founder vicariously liable for the entire amount of debts. As a result, the court recovered 18 million rubles from the founder (decision of the Moscow Arbitration Court dated October 1, 2009 No. A40-61317/09-74-256).

Thank you for your assistance in preparing the material.

Yuri Vorobyov, lawyer of the company "Pepelyaev, Goltsblat and Partners"

Kiru Gin-Barisevichene, Managing Partner of the Group of Legal and Audit Companies "SUPPORT TO BUSINESS PROJECTS"

Anna Kuznetsova, expert of the auditing firm "Business Studio"

Artem Kuzminykh, Managing Partner of the company "Kuzminykh, Evseev and Partners"

Alexey Smirnov, Leading legal consultant of the audit company MKPTSN