КОНЦЕПЦИЯ «ИНОЙ ЗАВИСИМОСТИ» ПРИ ПЕРЕДАЧЕ БИЗНЕСА ДОЛЖНИКА: ЦИВИЛИСТИЧЕСКИЙ ВЗГЛЯД

Закон. 2017. № 8. С. 34–42.

Tsepov G.

The article deals with the problem of tax debt enforcement while “transferring financial and economic activities” from one legal entity to the other. The issue under consideration is beyond tax legislation which is derived from civil legislation and is obliged to operate its concepts and institutions. Ignoring them, wrong borrowing or creating an alternative conceptual framework may cause controversy. For example, the concept of “alternative dependence” leads to legal uncertainty. The concept mistakenly identifies enterprise – the object of the right with the concept organization – legal entity. Dependence it is a category of will. To recognize a person dependent it is not necessary to establish community property or property, before belonged to the debtor, but it is necessary to establish that the will of a dependent subject is substantially controlled by another person. It is also unacceptable that in peacetime interests of budget should be placed above the interests of all the other groups of creditors. Assuming that tax authorities have the right to recover the receivables from the deputy organization outside bankruptcy proceedings, and the recovered funds are not included in the insolvency estate, then the budget will get illegitimate profit at the expense of the rest of the creditors. A solution of the problem must be sought not by introducing new kinds of dependency, unknown for civil law, but by accurately qualifying property relations between a debtor and a deputy. In the present case, in fact, they conclude a contract for the transfer of an organization.

Keywords: предприятие, enterprise, должник, зависимость, dependence, debtor

Publication based on the results of: Правовое обеспечение корпоративного управления: теория и практика (2014)