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DEBTORS WILL BE ABLE TO COUNT ON A MONTHLY LIVING WAGE

21.06.2021

The State Duma passed in the third reading a law that would allow at the request of a debtor to leave him in a bank account the amount of a living wage. The initiative came from a number of deputies and senators, and the bill itself, introduced in February this year, has come a relatively short way before its adoption. And if the amendments are approved by the Federation Council and the President of Russia, the law will come into force in February 2022.

Changes are provided for art. 446 of the Civil procedural code and for the federal law "About Enforcement Proceedings". According to the innovations, a bailiff shall explain to a debtor-citizen the right to preserve his income in the amount of subsistence minimum. The debtor has the right to apply to the bailiffs with a corresponding application. It is required to document the information on monthly income, as well as to specify the details of the bank account, in which it is necessary to save the specified funds.

If the debtor has dependents, which requires the preservation of income in a larger amount, then the application should go to court.

At the same time, there are some restrictions on the application of the new regulation. So, the mechanism is not used if it is:

about the recovery of alimony;
The compensation for damages caused by a crime;
about compensation for damage in connection with the death of a breadwinner or damage caused to health.

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MORE THAN A YEAR HAS PASSED SINCE THE ACT OF THE SOJ CONFIRMING THE CLAIMS AGAINST THE DEBTOR CAME INTO FORCE. HOW TO THE CREDITOR, SAID THE CONSTITUTIONAL COURT

07.06.2021

The Constitutional Court considered the issue of restoring the term for a creditor to file a cassation appeal against the act of the Court of Common Pleas (CCJ), which was the basis for including the claim into the register.

What's the dispute about?

A bankruptcy case was filed against the debtor in April 2019 and a debt restructuring proceeding was instituted in September.

In November 2019, the court accepted the creditor's application to include the claims in the register.

Two days later, the creditor filed an application to appeal the COJ's appellate ruling, which affirmed the claims of the initiator of this bankruptcy case. Along with this, the creditor asked to restore the deadline for filing a cassation appeal, citing paragraph 24 of the Resolution of the Plenum of the SCA № 35 of June 22, 2012.

However, the courts denied the claimant, because on the basis of Part 6 of Art. 112 of the Code of Civil Procedure (CPC) the missed period shall not be restored. The fact is that more than a year passed from the date of entry into force of the appealed definition of the CJC until the filing of the cassation appeal.

The creditor had appealed to the Constitutional Court, asking for an interpretation of the disputed rule of law.

 

Position of the Constitutional Court

The Constitutional Court pointed out that following the 2007 Ruling no. 234-OP, the Arbitration Procedure Code (APC) was amended, according to which the missed term may be restored as of the date when the person who did not take part in the case knows or may potentially know that his rights have been violated.

It was noted that similar relations should be regulated in the same way. Nevertheless, the provisions of the APC provide a higher level of guarantees of judicial protection in bankruptcy cases than does Part. 6 Art. 112 of the CPC.

Since the judicial act confirming the validity of the claim against the debtor directly affects the rights of creditors, the absence of the possibility to restore the procedural period would not allow to consider the appeal procedure as an effective means of legal protection.

The Constitutional Court stated: in this situation, the provisions of paragraph 2 of paragraph 6 of Art. 112 of the Code of Civil Procedure do not allow to consider the appeal procedure as an effective remedy. 6 of Art. 112 of the Code of Civil Procedure cannot be regarded as preventing the restoration of the deadline.

Any other interpretation of the norm in law enforcement practice is excluded.

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THEY WANT TO SIMPLIFY THE TERMINATION OF IE STATUS FOR PERSONS IN CUSTODY

15.06.2021

On June 11, 2021 draft law ¹1192160-7 with amendments to Art. 9 of Federal Law ¹129-FZ dated August 8, 2001 "On State Registration of Legal Entities and Individual Entrepreneurs" was introduced in the State Duma.

The subject of the right of legislative initiative was the Legislative Assembly of Nizhny Novgorod Oblast.

The projected change is directed on granting a new possibility to persons who are in places of imprisonment to submit the application on the termination of the status of the individual businessman (IE).

As it is said in the explanatory note, now accused and convicted persons may resort to the help of notary or specialist of MFC for certification of signatures on the application for state registration. However, services with departure to the location of the applicant are provided on a fee basis, and therefore not available to all.

The authors of the initiative point out that as of November 2020 there were 759 entrepreneurs in pre-trial prisons and 2,485 in penitentiary institutions. Attention is drawn to the fact that entrepreneurs who do not conduct activities and do not file reports are still accrued insurance premiums. In such a situation, many may be interested in terminating the status of an entrepreneur.

At the same time the mechanism of exclusion from the register by the decision of the regional body is not always relevant: several conditions must coincide here. For example, failure to submit accounts for 15 months or more, and the presence of arrears and debts on mandatory payments.

In order to eliminate this legal problem it is suggested to introduce to art. 9 of the law #129-ÔÇ it is not required to notarize the signature of applicant on application to state body if the signature of entrepreneur is certified by the head of detention facility or the head of correctional institution.

The Russian Government supported the bill - with one comment concerning the need to allocate funds for postage costs.

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REVIEW OF JUDICIAL PRACTICE WITH THE PARTICIPATION OF REGIONAL AUTHORITIES №4-2020 WAS PUBLISHED

31.05.2021

The Review of Court Practice with the participation of Regions #4-2020, prepared by the Federal Tax Service (Letter #KV-4-14/22005 of December 31, 2021), has been published. As usual, the selection contains three sections: the first deals with challenges to refusals of state registration, the second with challenges to registration, and the third contains other disputes with the participation of a state body.

Here are some positions from the review.

 

Since bankruptcy proceedings have been instituted with respect to a company, the courts have indicated that the bankruptcy trustee has the right to change the address only within one municipality. Otherwise will require changes to the constituent documents, which contrary to paragraph 2 of Art. 20 of the Law № 129-FZ of August 8, 2001 (paragraph 1.2, resolution of the 4th AAS on case № A19-1844/2020 of October 5, 2020).
The Registrar made an entry in the Unified State Register of Legal Entities about the unreliability of information in relation to the company. A month later the company applied for a change of address, and the regorgans decided to register these changes. The company asked the court to declare the actions of the registry to have made an entry in the register that the information was inaccurate illegal. However, the courts came to the conclusion that the actions of the regorgan were lawful, at the time of the dispute the Unified State Register of Legal Entities contained reliable information, the entry on the unreliability of information on the previous address did not violate the rights and interests of the applicant (point 2.1, resolution of the Moscow District Arbitration Court in case № A40-343958/2019 of 6 November 2020).
The courts concluded that there were no grounds for the registry to make an entry in the Unified State Register of Legal Entities on the unreliability of the company address due to failure to comply with the procedure for establishing these circumstances. It was explained that the indication in the protocol of the video recording without providing it does not indicate the reliability of the results of the inspection (the signatures of the witnesses were also not available). List of correspondence without information about the results of sending a notice (eg, receipt or refusal of receipt) does not prove the fact of correspondence (paragraph 2.3 of the decision 2 of AAS Case № A17-100/2020 on October 6, 2020).

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AS UO EXPLAINED FOR THE REASONS FOR LEAVING CASSATION APPEALS UNMOVED

24.05.2021

On May 19, 2021 the Arbitration court of Ural district published a reference on the results of the analysis of the rulings on leaving cassation appeals without a motion.

The court reminded that this institution gives the appellant an opportunity to correct the deficiencies within the prescribed period. Otherwise, the complaint is returned, but this does not prevent the reappeal to the court. However, the timing of the complaint is of great importance. If it happened almost before the deadline, the return of the complaint can lead to negative consequences.

The analysis conducted by the court is aimed at identifying the most common mistakes made by the applicants.

For the current year, more than 5% of the total number of cassation appeals were left unmoved for reasons such as:

absence of documents confirming the sending (delivery) of copies of the complaint to other persons involved in the case - 187 complaints;
absence of documents confirming the payment of state fees or the right to a privilege - 104 complaints;
absence of the petition for deferment (installment) of payment of the state duty, reduction of its amount - 5 complaints;
absence of power of attorney or other document entitling to sign the complaint - 5 complaints.
Since the applicants often met with the problems related to the state duty, the reference contains recommendations, worked out by the Presidium of the AS UO, Scientific and Advisory Council of the AS UO, the Working Group on the Application of the Arbitration Procedural Code, on this issue.

In particular, it clarifies that the receipt issued by the bank in the prescribed form is a document confirming the payment of the state duty in cash (question 1).

The case deals with the issue of payment of state duty when appealing an additional decision of the court on the case. It is reported that the additional judgment is a court decision and in case of a separate appeal, state duty shall be paid. In case of simultaneous/simultaneous appeal of the judgment and the additional judgment, the state duty is paid once (Question 5).

Another recommendation states that when appealing a judicial act approving a settlement agreement, state fees are to be paid (question 6).

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THERE WERE REVEALED ANOTHER VIOLATIONS IN THE BANKRUPTCY AUCTIONS

17.05.2021

The antimonopoly inspectors have considered the complaints about the actions of bankruptcy trustees during bankruptcy auctions.

Indication of financial manager's mailing address is not enough to allow inspection of the debtor's property

The claimant filed a complaint against the actions of a financial manager (organizer of the auction).

Having considered the complaint, the antitrust officers pointed out that the technical misprint committed by the financial manager deprived the potential buyers of the right to purchase the property of the debtor: the deadline for submission of bids was set on 12 April, not 12 May 2021.

Also, the message of the organizer of the bidding indicated the following procedure of getting acquainted with the property of the debtor: the bids shall be sent to the postal address of the organizer of the bidding. The phone number and email of the manager were missing.

These circumstances were deemed by the antimonopoly inspectors to be a violation: at a minimum, the notification should have included an email address where those wishing to become acquainted with the property could sign up. Also should have been given a detailed algorithm for the familiarization.

Since these circumstances could affect the outcome of the auction and prevent to get the maximum price for the property sold, in the actions of the organizer was found a violation of paragraph 9 of Article 110 of the law on bankruptcy. An injunction was given to eliminate these drawbacks and to complete the bidding process in accordance with the requirements of the law.

Sources: Decision and Instruction of the Moscow FAS of April 27, 2021 in case #077/07/00-6777/2021.

 

The unreasonable rejection of one bidder's application and the unlawful admission of another led to the necessity to re-examine the bids

The claimant filed a complaint against the actions of the bankruptcy trustee (organizer of the auction).

Based on the results of the review of the complaint, the antimonopoly inspectors decided that the organizer unreasonably rejected the bid of a bidder who had the appropriate license, had submitted the bid in time and paid the deposit, while at the same time unlawfully allowed another bidder. Thus, the winning bidder was recognized as a participant who did not meet the requirements established by law. This participant had not sent documents confirming the possibility and right to acquire the lot.

The manager's actions were qualified, in particular, as a violation of Clause 12 Article 110 of the Law on Bankruptcy. An order was issued to cancel the protocols drawn up during the auction and re-examine the bids.

Source: Decision of the Murmansk FAS of Russia in case № 051/10/18.1-140/2021 of March 5, 2021 (date of registration - May 5, 2021) 

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THE ACCOUNTS CHAMBER ASSESSED THE SUPPORT PROVIDED TO SMALL AND MEDIUM-SIZED BUSINESSES

10.05.2021

The results of the audit of JSC "SME Corporation" are published.

It is noted that the Corporation has not had a major impact on the development of small and medium enterprises in the country: support through a national guarantee system has been provided to less than 1% of these subjects. Thus, the assistance was of a local nature.

The lack of a significant impact is also demonstrated in relation to the indicator reflecting the share of loans to small and medium-sized businesses in the total loan portfolio of organizations and entrepreneurs. The performance of this indicator does not meet the objectives and decreases annually.

The Accounts Chamber noted that the Corporation has no long-term planning documents, and the short- and medium-term ones contain uncomplicated goals.

At the same time, a number of positive points were also assessed - for example, the increase in the ratio of the portfolio of guarantees and sureties to the guarantee capital.

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TAX NEWS FOR APRIL 27-30, 2021

04.05.2021

Topical clarifications, events and fresh letters of the tax service; published normative legal acts and their drafts

News from the Federal Tax Service

The Federal Tax Service has announced that only new treasury tax accounts are relevant from May 1, 2021. Information of April 28, 2021

The Federal Tax Service has clarified when the calculation of transport tax stops, if the vehicle has been forcibly seized from the owner. Information of April 28, 2021

The Ministry of Justice has registered an order of the Federal Tax Service which introduces amendments in relation to the VAT declaration. Clarifies the rules for the reflection of information within the goods traceability system. Information dated April 27, 2021
 

Measures of Federal Tax Service

The Moscow office of the Federal Tax Service published a schedule of webinars for May 2021. Read more at

The Irkutsk Regional Office of the Federal Tax Service held an online broadcast on "Liquidation of legal entities. Questions and Answers". The recording of the event is freely available. Read more at .

On May 14 the Office of the Federal Tax Service for the Krasnoyarsk region will hold a webinar on the subject of state registration of legal entities and individual entrepreneurs. Pre-registration is required. Read more .

The Interdistrict Federal Tax Service in the Tver Region held a webinar where they spoke about the current changes in the tax legislation. The recording of the event is available for everyone. Read more

The interdistrict inspectorate № 10 of the Federal Tax Service held a webinar on "Topical issues of cameral tax audits of VAT". There is a record of the webinar. Read more

On May 12, the Interregional Inspectorate for Major Taxpayers № 3 will hold a webinar on "Discussion of the results of law enforcement practice of the tax authorities and compliance with mandatory requirements for the control and supervisory activities". You must inform about participation no later than May 11, 2021. Read more

Letters from the Federal Tax Service

In letter No. KV-4-14/5689@ of April 26, 2021, the Federal Tax Service informs the Unified State Register of Legal Entities of the information about the sole shareholder.

In Letter № BS-4-21/5794@ of April 27, 2021 the Federal Tax Service talks about determining the tax authority to file a corporate property tax return if the property is leased.

In Letter № BS-4-11/5630@ of April 23, 2021 the Federal Tax Service gives explanations about item 9 of article 226 of the Tax Code.

By letter No. BS-4-11/5763@ of April 26, 2021, the Federal Tax Service sends the position of the Ministry of Finance regarding the use of budget income type codes in 2021 for payment of personal income tax from fixed income of controlled foreign companies.

In letter No. BS-4-21/5905@ of April 27, 2021, the Federal Tax Service reports on the classification of property in accordance with Russian Government Decree No. 1421 of November 23, 2017, as objects of taxation on the tax on property of organizations.

 

Regulatory legal acts

Published federal laws from April 30, 2021:
- Law No. 103-FZ with amendments for Articles 154 and 164 of the Tax Code. The details are here;

- Law No. 104-FZ with amendments to Art. 265 of the Tax Code. The details are here;

- Law No. 105-FZ with amendments to Art. 333.35 of the Tax Code. For details click here.

Order of the Federal Tax Service № КВ-7-3/234@ of March 30, 2021 has been published.
 

Drafts of normative legal acts

Messages on draft amendments to the Tax Code appeared on regulation.gov.ru:

published a bill with amendments for Part. 2 of the Tax Code (ID - 02/04/04-21/00115492) has been published. It concerns the establishment of specific features for the determination of labor remuneration costs for taxpayers operating in the territory of the Far Eastern Federal District. Public discussion of the bill will last till May 20, 2021. You can access the page of the initiative by clicking here;

the bill with amendments to Article 333.33 of the Tax Code (ID - 02/04/04-21/00115538) was published. The initiative concerns an increase in the state duty for the issuance of a certificate of conformity of transport vehicles with changes made to their construction to safety requirements, etc. The public discussions will be prolonged till May 28, 2021, you can go to the page of the initiative by following the link;

The notice of the beginning of elaboration of the draft law on making changes to the Article 333.33 and 333.34 (ID - 02/04/04-21/00115613) was published. It is a question of improving the state services for the registration of mass media. Public discussions will continue until May 31, 2021; you can access the notice page here.

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EXTRAJUDICIAL BANKRUPTCY OF CITIZENS: WHAT CAN CHANGE? 

26.04.2021

The Federation Council was informed of the forthcoming amendments to the law on bankruptcy. Earlier, the Ministry of Economic Development submitted its proposals for public discussion.

A new category of debtors
Last week Senator Margarita Pavlova spoke about the draft law that would update the procedure of extrajudicial bankruptcy of citizens. Senators Andrei Kutepov and Alexei Sinitsyn also participated in the development of the initiative.

Margarita Pavlova informed about plans to allow another category of debtors to use out-of-court bankruptcy.

We are talking about citizens who receive insurance pension for old age, disability, loss of breadwinner - if this is the only income, and its size does not exceed two minimum subsistence level of able-bodied population on average in Russia.

The senator believes that for such persons extrajudicial bankruptcy is necessary, but income in the form of pensions does not allow to implement such a procedure.

The initiative with the amendments for clause. 1 of the article 223.2 of the law on bankruptcy was sent for revocation to the Government of Russia.

Simplification and prevention of abuse
Earlier, Andrey Kutepov commented on the draft law developed by the senators. The senator called the initiative a simplification of extrajudicial bankruptcy procedure for citizens.

The following amendments were mentioned:

- a citizen will be able to form a list of creditors for mandatory payments using information resources of the MFC;

- excessive obligations of MFC to notify special subjects of the publication of information about the initiation of extrajudicial bankruptcy proceedings against a citizen in the UFRSB will be eliminated;

- debtors will be able to submit a revised application to the MFC once;

- there are mechanisms to prevent the abuse of the procedure.

Filing bankruptcy petition via Gosuslugi
It should be reminded that in March 2021 at regulation.gov.ru was placed a notice of drafting a law with amendments simplifying extrajudicial bankruptcy procedure for citizens.

The initiative suggests that citizens will be able to file out-of-court bankruptcy electronically through a personal account on Gosuslugi.

The respective draft law and explanatory note are now posted on regulation.gov.ru. Public discussion will continue until April 30, 2021, you can go to the page of the initiative by clicking here.

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ARBITRATION COURTS TOLD ABOUT FRESH BANKRUPTCY DISPUTES

19.04.2021

Arbitration courts of the Republic of Sakha (Yakutia) and the Republic of Khakassia presented interesting cases.

Involvement in "subsidy"
The Arbitration court of the Sakha Republic (Yakutia) announced that the department of the Federal Tax Service had requested to bring a former head of a debtor to subsidiary liability.

The taxmen referred to the fact that in the run-up to the bankruptcy a number of transactions had been concluded between the debtor and the company. The head of these legal entities was the same individual who was also registered as an individual entrepreneur.

This series of suspicious transactions actually led the debtor to bankruptcy. The court found that the transactions had been carried out as part of a scheme aimed at obtaining benefits from third parties (companies and an individual entrepreneur) to the detriment of creditors.

The courts of the first and appellate instances acknowledged the existence of the grounds for bringing a "subsidiary". Determination of the amount of liability of the former manager was suspended until the completion of settlements with creditors (case No. A58-1591/2016, ruling of April 5 of the year).

 

Approval of the bankruptcy trustee
The Arbitration Court of the Republic of Khakassia informed that it is inadmissible to approve the arbitration manager if there are doubts about his independence (case №A74-11355/2017, ruling of March 19, 2021).

The court may also not approve a crisis manager when his competence is in question - due to the existence of decisions to impose disciplinary liability for violations of the law on bankruptcy.

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THE DECISION OF THE REGISTRAR'S OFFICE TO ENTER INFORMATION INTO THE UNIFIED STATE REGISTER OF LEGAL ENTITIES DOES NOT, IN ITSELF, GIVE RISE TO CORPORATE RIGHTS

13.04.2021

The Supreme Court considered another dispute regarding the procedure for obtaining the status of a participant in LLC. A similar case was heard by the judicial board last December (click here for details).

Property was divided between a company participant (50%) and his former spouse. The spouse received a 25% interest. Soon thereafter, the Registrar made an entry in the USRLE, according to which the former spouse received the status of society participant.

Another member (the plaintiff in the case) believed that the former spouse of the member (the defendant) had acquired the share in violation of the procedure set forth in the Articles of Association.

The courts of three instances disagreed. They noted that the right to the share passed to the defendant by virtue of a judicial act, not the transaction. The provisions of the statute does not contain specific requirements for the rules of transfer of a share or part of it in the division of marital property. In this regard, the consent of other participants was not obligatory.

This position could not be supported by the Supreme Court. The following explanations were given: if in dividing the property the former spouse received a share in a company and the charter of that company provides for restrictions, then such a spouse should ask to become a member. If the members do not agree to this, however, there would be a right to demand an appropriate payment.

The articles of association stipulated that in order to alienate a share to a third party the consent of the other members had to be obtained.

The judicial act on division of property contained information that the defendant acquired property rights but not corporate rights. The court did not decide on the question of acquisition of the status of a participant in the company.

Thus, the defendant should have followed the statutory procedure.

The decision of the Registrar on entering information about the new participant in the register does not in itself lead to the emergence of corporate rights for the defendant, the Supreme Court noted.

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TAX OFFICIALS TOLD HOW TO AVOID BEING HELD LIABLE FOR "SUBSIDY"

05.04.2021

The Samara region office of the Federal Tax Service has formulated a number of general rules which, if observed, will help to avoid bringing to subsidiary responsibility.

The service reminds that not only a company's shareholder and its manager, but also an entity not formally related to the debtor may be recognized as a debtor-controlling person (CoC). These may be relatives of the persons who are members of the debtor's bodies, beneficiaries, etc. If creditors have exhausted other possibilities for satisfying their claims and request that the individual be subject to vicarious liability, the court determines whether the debtor can be considered a related party.

Judicial practice has already developed the criteria of bad faith behavior of a CEO, who is responsible for the formation of debts to creditors and failure to fulfill obligations.

To avoid falling into the "subsidiary" trap, the Office does not recommend:

Register a "twin" to whom the debtor's activities are transferred. Repeated actions of this kind are particularly noticeable;
Transferring a debtor's profits to another company;
create a "profit and loss center" scheme;
to leave the company without attention when it has debts, not to try to settle debts;
manipulate accounting and tax documents;
Withdraw assets to hide them from creditors;
Not to participate actively in court disputes, which can lead to an objective bankruptcy.
The department reminds that unscrupulous actions of CDL may lead not only to civil liability, but also to criminal liability.

The department also informs that it is successfully working to recover losses and bringing the CDL to subsidiary liability - as a body authorized to represent the interests of Russia on claims in bankruptcy cases.

As a result of such work, the budget was replenished by 14.2 million rubles in 2020 and by 13 million rubles already in the first quarter of this year. Part of the proceeds to the treasury is associated with bringing vicarious liability outside bankruptcy cases.

 

We would like to remind you that the Office of the Federal Tax Service for the Arkhangelsk region and the Nenets Autonomous District has recently reported on its work in bankruptcy cases.

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TAX OFFICIALS REMINDED ABOUT INSTALLMENT DEBT DISCHARGE IN BANKRUPTCY CASES

29.03.2021

The Office of the Federal Tax Service of the Kirov region informs: arrears in mandatory payments may lead to bankruptcy.

The Government Decree № 409 of April 2, 2020 provided businesses with "coronavirus" support measures in the form of deferrals (installments) on payment of taxes, advance payments and insurance premiums.

This decree is not relevant in 2021, so taxpayers need to make mandatory payments to the budget to avoid being recognized as debtors. It is worth remembering that penalties are accrued on the amount of arrears. In addition, such measures of forced collection as the suspension of operations on accounts, the arrest of property, the transfer of debt to the bailiff service are possible.

The payer, who has not fulfilled the obligation to pay taxes, fees and contributions on time, should check the amount of the debt. You can do this, for example, through Gosuslugi.

If the debtor-legal entity's amount of debt exceeds 300 thousand rubles, and he will not take measures to fulfill obligations for more than 3 months, it is possible to recognize his bankruptcy.

Tax officials remind that they may grant installments at any stage of bankruptcy proceedings. This refers to an amicable agreement, for which it is necessary to repay the debt on a monthly basis within a year or three years (depending on the type of compulsory payment), and - to provide security for the fulfilment of the obligation.

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THE ARBITRATION COURT DESCRIBED THE EMERGING PRACTICE OF DISPUTES WITH THE FEDERAL SOCIAL SECURITY FUND

22.03.2021

The Fourteenth Arbitration Court of Appeal reported on two disputes in which the legality of the actions of the Social Insurance Fund (FSS) was assessed .

Pregnancy and childbirth - a single insured event
In July 2019, the woman registered as an individual entrepreneur. Insurance premiums for that year were paid by her in full. Based on a certificate of incapacity for work issued at the end of December 2019 and covering the period through May 2020, the woman applied to the FSS for payment of maternity benefits.

However, the FSS denied payment to the claimant. They explained: the contributions were paid in 2019, so the insurance coverage can only be received from the beginning of 2020. Since the insured event occurred in December 2019, there is no right to the benefit.

The courts disagreed with the position of the FSS: pregnancy and childbirth are a single insured event. The benefit requested by the claimant was calculated from January 2020 - from the following year after the amount of insurance premiums were paid and during the period of the certificate of incapacity for work. The fact that the certificate was issued in December 2019 should not interfere with the rights to social protection.

Case No. A13-8275/2020; Information dated March 10, 2021

 

Violations in the execution of the certificate of incapacity for work does not refute the existence of a disease
FSS paid benefits to an employee of the company, but then checked the certificate of incapacity for work and found that the medical organization had filled out some of the boxes wrong.

The FSS offered the company a refund of the excessively transferred money, and the company agreed. The society then demanded that the amount of the allowance be reimbursed from the medical organization as damage.

The medical organization refused, and the case went to court. The court denied the company's claim, since the medical certificate was validly issued, and the insured received the benefit lawfully.

Referring to this judicial act, the company appealed to the FSS with a request to return the money. The FSS objected: payment based on an incorrectly executed document is not allowed.

The court disagreed with the FSS, because the hospital's violations did not disprove the fact of the insured event (illness). The employee was entitled to benefits. Therefore, the erroneous return of funds to the FSS led to his unjust enrichment.

Case № A13-5442/2020, Case № A13-14519/2020; Information of March 18, 2021

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THE FEDERAL TAX SERVICE HAS ISSUED RECOMMENDATIONS ON THE APPLICATION OF ARTICLE 54.1 OF THE TAX CODE

15.03.2021

The Federal Tax Service has published a letter #BV-4-7/3060@ of March 10, 2021, which gives a detailed explanation of Article 54.1 of the Tax Code. The recommendations were developed on the basis of law enforcement practice.

The ministry notes that Article 54.1 of the Tax Code is aimed at combating tax abuse and obtaining an unjustified tax benefit. By virtue of a recent decision of the Constitutional Court № 2311-O on September 29, 2020, these provisions are designed to balance the private and public interests, they define the circumstances and conditions which the tax authorities assess in qualifying actions as illegal.

The recommendations from the Federal Tax Service contain eight sections. In particular, they deal with the assessment of the actions of taxpayers on the use of formal document turnover, on prudence in selecting a counterparty; on the analysis of business models in the group of persons whose taxpayers apply special tax regimes.

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TAX NEWS FOR MARCH 2-9, 2021

09.03.2021

Actual clarifications, recent letters, regulations and bills

 

News from the Federal Tax Service
The Federal Tax Service (FTS) told about obtaining a professional deduction for notaries. Information of March 4, 2021
In department told about the main innovations concerning the tax on property of physical persons since 2021. Information from March 3, 2021
The deputy head of the Office of Legal Entity Taxation reported on the rules for accounting for subsidies that businesses received during the pandemic. Information of March 9, 2021
Representatives of the Federal Tax Service briefed on the application of exemptions in the IT industry beginning in 2021. Information from March 2, 2021.
The Federal Tax Service has compiled information on the number of women employed in small businesses. Information of March 5, 2021.
The Department of the Federal Tax Service for Khabarovsk Krai estimated that last year there was a quarter decrease in the number of checks on the accuracy of information entered in the Unified State Register of Legal Entities (compared to 2019 data). The Office believes that this indicates an increase in the discipline of participants in civil turnover. Information of March 4, 2021
The Department of the Federal Tax Service in Moscow reminded about the benefit in the form of a deduction for land tax and property tax on physical persons, which is provided to families with many children. Information of March 3, 2021
The Department of the Federal Tax Service in Moscow has summarized the results of work for the year 2020. Information from 2 March 2021
The Department of the Federal Tax Service in the Republic of Bashkortostan expounded that last year 29 bankruptcy trustees were brought to administrative responsibility under Clause 14.13 of the CAO, with 7 of them disqualified for the period from 6 months to 1.5 years. Information of March 5, 2021.
 

Letters from the Federal Tax Service
The Federal Tax Service in a letter № SD-4-3/2400@ of February 25, 2021 reported on the procedure for applying deductions and accounting VAT for electronic services.
In Letter № ÑÄ-4-2/2368@ of February 25, 2021 the service instructs lower tax authorities to exclude requests for information from banks which is not stipulated by law.
In letter № BS-4-21/2390@ of February 25, 2021 the department informs about the possibility of using a personal account for organizations.
In Letter № ÑÄ-4-3/2355@ of February 25, 2021 the Federal Tax Service informs about the patent system of taxation.
The Letter No. BS-4-21/2365@ of February 25, 2021 gives the position of the Ministry of Finance regarding the rate for property tax of physical persons.
Letter № ВД-4-17/2458@ of February 26, 2021 gives explanations concerning the application of amendments to the currency legislation.
Letter № BS-4-21/2510@ of March 1, 2021 informs of the publication of a list of cars priced at 3 million rubles and more for the tax period of 2021.
In letter No. SD-4-3/2767@ of March 4, 2021, the service provides clarification on the mineral extraction tax.
 

Normative legal acts
Order of the Federal Tax Service No. ED-7-21/107@ of January 28, 2021, which approved the form and format for information on the full payment of contributions for real estate, was published.
Order of the Federal Tax Service #ED-7-13/162@ of February 24, 2021, which amends the order approving the recommended formats for information submission for pricing agreements, has been posted on consultant.ru.
 

Bills
On 4 March 2021, the Government of Russia introduced to the State Duma bill No. 123936-7 with amendments to Article 265 of the Tax Code. It is proposed to include norms concerning the creation of a unified register of non-commercial organizations - in order to increase the effectiveness of measures of state support and for tax incentives. The text of the initiative is here.
On regulation.gov.ru appeared the bill prepared by the Ministry of Finance (ID - 02/04/03-21/00113825) on modification of Article 165 of the Tax Code. The initiative is designed to simplify the procedure for documenting the 0% VAT rate. Public discussions will continue until March 18, 2021.

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FRESH BILLS: SUPPORT FOR SMALL BUSINESS AND INSURANCE ACTIVITIES OF FOREIGN ORGANIZATIONS

01.03.2021

At the end of last week, a number of bills were submitted to the State Duma that could affect the regulation of entrepreneurial activity. We suggest reading some of them.

Changes in legislation to help small business
Duma deputy A.K. Lugovoi drew attention to the problems of small and micro-businesses, which are caused by difficulties in depositing cash proceeds into an account (draft law № 1119605-7).

The deputy notes that sometimes the cost of collection reaches 20% of profits. As a result, the turnover is transferred into the shadow sector. The law allows to deposit the proceeds to the account through automatic collection device, but only the largest credit institutions are able to maintain a network of such devices.

Therefore it is proposed to give bank payment agents the right to accept cash on behalf of a credit institution. There is a possibility to make inter-bank agreements which will allow any credit organization to provide access to ATMs of bank payment agents for client companies.

The amendments are worked out for the laws "On application of cash register equipment during settlements in the Russian Federation", "On national payment system".

If adopted, the proposed amendments will come into force 180 days after their publication.

 

Amendments on insurance activities in connection with the accession to the WTO
The Russian government has introduced three bills to bring the codes in line with Russia's post-accession commitments to the World Trade Organization. According to the list of specific obligations, the commercial presence of foreign insurance organizations via the establishment of branches in Russia should be allowed from August 22, 2021.

The draft law №1120347-7 proposes amendments to Art. 15.34.1 of the Code of Administrative Offences of the Russian Federation, which would allow foreign insurance organizations operating in Russia through branches to be included in the list of offence subjects.

The draft law №1120503-7 contains amendments for Article 172.1 of the Criminal Code. It is proposed to extend the provisions of that article to foreign insurance organizations insofar as they operate in Russia through branches set up by them.

Draft law №1120504-7 concerns amendments to Articles 927 and 938 of the Civil Code. It is proposed that the term "insurer" should be used in these articles for the comparability of the conditions of Russian and foreign insurance companies.

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CREDIT INSTITUTIONS' CLIENTS WERE PROPOSED TO BE DIVIDED INTO CATEGORIES ACCORDING TO THE LEVEL OF RISK

24.02.2021

Deputies of the State Duma and senators have introduced the bill #1116371-7 with amendments for Federal Laws "On the Central Bank of the Russian Federation (Bank of Russia)", "On Banks and Banking Activity", "On Counteraction of Legalization (Laundering) of Criminal Proceeds and Terrorism Financing".

The amendments are intended to increase the efficiency of "anti-legalization" systems of credit organizations and reduce the number of suspicious transactions.

The authors of the initiative note that the Central Bank has extensive experience in detecting such operations and department's estimates are quite accurate. Thanks to the modern possibilities of working with information the Central Bank can timely inform the credit organizations about the risks.

In this connection it is suggested to create a special service on the basis of the Central Bank called "The Know Your Client Platform". This service will allow banks to receive information regarding clients as well as their counterparties.

The Central Bank will evaluate organizations and entrepreneurs according to the level of risk: low, medium and high. In order to be classified in one of the categories it is planned to take into account the information on activities of business entities, on operations with their accounts, on founders, executives and affiliated persons, the number of bank accounts. In addition, they will pay attention to information from federal executive bodies.

The low level will be assigned to companies and entrepreneurs who:

conduct real business activities;
Do not conduct suspicious transactions.
The medium level would be assigned to entities that:

are distinguished by combining real and shadow activities;
withdraw money of large clients to the shadow sector;
participate in the turnover of unrecorded cash proceeds;
operate in areas with increased risks.
And, finally, the high level would be assigned to persons:

not carrying out any real activities;
registered in the name of fictitious persons;
hindering the search for the beneficiaries of dubious transactions;
facilitating settlements in the shadow sector.
The authors of the draft law say that currently low-risk organizations account for approximately 99%, medium-risk organizations - 0.3%, and high-risk organizations - 0.7% of the total number of organizations.

According to the draft law, credit institutions will also have to classify their clients into one of the above categories. When making an assessment, these organizations will be able to use information from the Central Bank.

As a result, credit institutions will apply a differentiated approach to servicing clients of different risk levels. Business entities will be able to protect their rights both in the interdepartmental commission at the Central Bank, and in court.

The authors of amendments hope that this law draft shall decrease the burden on honest clients as they will pay attention only to doubtful subjects.

It is planned that if the law is adopted it will come into force 180 days after its official publication (except for some provisions).

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BANKRUPTCY MORATORIUM: FIRST RESULTS AND WHAT TO DO NEXT

15.02.2021

Tax officials reported how the bankruptcy moratorium has affected business activity in the regions. Department of Federal Tax Service for Nizhny Novgorod region also informed how creditors should behave after this measure of support for debtors has been cancelled.

Influence in the regions
The Department of the Federal Tax Service in the Irkutsk region reports: during the period of the bankruptcy moratorium, the number of tax officials' applications for insolvency declined by 60%. At the beginning of 2020 there were 494 applications, at the beginning of 2021 - only 199.

Nizhny Novgorod region Department of Federal Tax Service counted 84 companies which used the moratorium and at the same time possessed signs of bankruptcy due to failure to transfer mandatory payments. The amount of their debt to the budget is 412 million rubles.

 

The abolition of the moratorium and its consequences
Since there is no more moratorium starting from January 8, 2021 the administration of Federal Tax Service for Nizhny Novgorod region told about some peculiarities of bankruptcy of the debtors who are subject to this support measure.

Thus, bankruptcy initiator may file only those claims which appeared before the moratorium was introduced. If the creditor does not have such claims or if they are insufficient, then it will be possible to start bankruptcy proceedings only three months after the moratorium is over. That is from April 8, 2021.

If an insolvency case is initiated within three months after the termination of the bankruptcy moratorium (before April 8), the register requirements are formed in a special way. Here, the date of the first procedure in the case is not taken into account, the composition and size of the claims are determined as of the beginning of the moratorium. Accordingly, the obligations of the debtor that arose during the moratorium will be considered to be current claims. From the moment the moratorium is introduced, financial sanctions and contractual interest are not taken into account. If the debtor's controlling persons provided compensatory financing to the debtor during the moratorium period, the priority of claims arising from this financing is not lowered.

 

Legal regulation
It should be reminded that the moratorium operated as a support measure from 6 April 2020 to 7 January 2021 in relation to a number of payers - those who had suffered from the pandemic, as well as those included in the lists of systemically important and strategic enterprises (Decree of the Government of Russia № 428 of 3 April 2020).

Legislatively, the moratorium is regulated by Article 9.1 of the law on bankruptcy; detailed explanations on the application of these provisions are given in Resolution No. 44 of the Plenum of the Supreme Court of December 24, 2020.

To find out whether the bankruptcy moratorium applies to a particular business, the Federal Tax Service has created a special service which gives results after entering the taxpayer's TIN or OGRN (OGRNIP).

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A REVIEW OF THE DISTRICT COURT'S BANKRUPTCY CASE LAW APPEARED

08.02.2021

On February 5, 2021, the Arbitration Court of the Ural District published a review of citizen bankruptcy practice. There are eight positions in the compilation, here is a summary of them.

1. In a situation where the debtor is a sole participant and head of the companies, the financial manager has the right to demand the documents concerning the activities of those companies in order to determine the market value of the shares for the purpose of their subsequent sale.
Ruling on case No. A50-32815/2017 of March 5, 2020

2. determining whether the residential premises have executive immunity, it is necessary to establish the circle of persons who use the premises and involve them in the dispute.
Ruling in Case No. A50-13187/2017, March 10, 2020

3. In resolving the issue of whether the property is the only residence, along with other evidence, it is necessary to assess the good faith of the debtor.
Ruling in case No. A76-11986/2016, December 2, 2019

4. In a situation where the debtor and his former spouse have a residential house in common joint ownership, and the land plot under it is the personal property of the former spouse, the sale of the house without the land plot is not allowed.
Ruling on case No. A60-34642/2018 of March 11, 2020

5. A creditor who alleges that the debt is a joint obligation of the spouses need only provide substantial circumstantial evidence of the use of the funds for the family's needs. The spouses must then prove otherwise.
Decision in case No. A60-7191/2017 dated January 23, 2020, Decision in case No. A60-52148/2016 dated March 24, 2020

6. The fact that the property in the debtor's residential premises belongs to other members of his family must be proved by the debtor and the persons who claim rights to the disputed property.
Judgment in case No. A47-10685/2018 of January 24, 2020

7. If the debtor's complaint about the financial manager's failure to take steps to challenge the transaction is found to be valid, the debtor will be able to challenge the transaction himself in respect of his property on general civil grounds.
Ruling on Case No. A07-40411/2017 of March 17, 2020

8. In a situation where in the procedure for the sale of property all measures have been completed, and it is impossible to approve the candidacy of a new financial manager, the question of completing the procedure and releasing the debtor from the execution of obligations is submitted to the discussion of the participants in the case.
Ruling on case No. A76-25495/2015 of 8 June 2020

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THE RULES ON THE ORDER OF PRIORITY OF CREDITORS' CLAIMS IN BANKRUPTCY MAY BE CHANGED

02.02.2021

Last week draft law No 1103069-7 amending the insolvency law was introduced in the State Duma. The authors of the initiative were deputies S.M. Mironov and M.V. Yemelyanov.

The proposed amendments refer to par. 3 p. 4 art. 134 of the law on insolvency. The initiators draw attention to the legal uncertainty, which emerged in the provision on payments to creditors of the second order. Thus, it is not clear from the existing regulation whether debts to non-budgetary funds are repaid together with labor payments.

In 2014, the Supreme Arbitration Court in p. 3 p. 2 of the Resolution of the Plenum No. 37 of June 6, 2014 gave explanations, according to which register claims for insurance premiums were to be satisfied in the third turn, i.e. after the repayment of wage arrears.

However, later practice saw other approaches - insurance premiums were referred to the second queue, together with labor payments.

In particular, it is possible to note explanations from item 14 of the Review of judicial practice of the Supreme Court on bankruptcy of December 20, 2016. Here it is reported: claims for payment of insurance contributions for compulsory pension insurance, which are not current, are satisfied according to paragraph 3 of clause 4 of Article 134 of the Bankruptcy Law - in the second queue.

The authors of the draft law explain that an expansive interpretation of this norm leads to an unjustified privileged position of the state, which should be on an equal footing with other creditors.

Moreover, such an approach - when in the same queue with the labor payments should be paid arrears of insurance premiums - is detrimental to both workers who risk not getting what is due, and the continuation of the enterprises, if they do not have enough money to pay off the non-budgetary funds.

In this regard, the deputies proposed a new version of the rules under which in satisfying the creditors claims of the second order of payment are collected only payments to employees and authors of the results of intellectual activity. Other debts - in particular, debts to the Pension Fund, Social Insurance Fund and Compulsory Medical Insurance Fund - cannot be in this queue.

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TAX NEWS FOR JANUARY 12-19, 2021

25.01.2021

Federal Tax Service News
The Federal Tax Service informs: companies on benefits for transport and land taxes for 2020 is better to declare in the first quarter of 2021. Information of January 14, 2021
From the beginning of 2021 a compulsory copy of accounting (financial) statements must be submitted in the form of an electronic document through telecommunications channels. Statements must be sent to the tax authority at the taxpayer's location. Information of January 15, 2021
There is a new function in the register of small and medium-sized businesses - now the search allows to find out about all periods of presence of the subject in the register. This information can be collected for an individual with an enhanced qualified service signature. Information from January 18, 2021
New features are now also available in the Transparent Business service: for example, there is an advanced search. Information of January 12, 2021
The editorial board of the magazine "Tax Policy and Practice" will hold a free webinar on bankruptcy proceedings on January 22 at 10 o'clock. Pre-registration is required. Information of January 19, 2021
 

Letters from the Federal Tax Service
In Letter № SD-4-3/119@ of January 14, 2021 the Federal Tax Service states that if you want to switch from UTII to "simplified tax" from the beginning of 2021, you must notify the tax authorities no later than February 1, 2021.
In Letter # BS-4-11/148@ of January 14, 2021, the Federal Tax Service informed persons engaged in private practice (including notaries, lawyers) on how to properly complete a 3-PIT form.
In Letter No. KV-4-3/21782@ of December 29, 2020, the service gives an answer on the use of the patent system of taxation (PSN) by persons who provide motor transportation services in several regions.
In Letter No. KV-4-321216@ of December 23, 2020, the Federal Tax Service talks about the use of the PSN in retail trade, which is carried out in shopping complexes and centers.
 

Regulatory legal acts
Order of the Federal Tax Service № KCH-7-3/882@ of December 4, 2020 approved forms of documents for the application of the PSN.
Order of the Federal Tax Service № КН-7-3/881@ of December 4, 2020 approved the form of a patent for the right to use the licensing system.
By Order No. KCH-7-3/887@ of the Federal Tax Service dated December 8, 2020, a declaration form for mineral extraction tax was approved.

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ORGANIZATIONS MAY DECLARE TO ANY TAX AUTHORITY ON AVAILABLE BENEFITS FOR TRANSPORT AND LAND TAXES FOR 2020

18.01.2021

Beginning in 2021, organizations are no longer required to file their vehicle and land tax returns. They are not sent for 2020 and subsequent tax periods.

In order to apply the statutory exemptions for those taxes for 2020 a legal entity has the right to submit an application for an exemption and supporting documents to any tax authority.

Chapters 28 "Transport tax" and 31 "Land tax" The Tax Code does not establish a deadline for the submission of the said application, nor does it tie the application of tax benefits to the compulsory submission thereof during any period. However, as from 2021, in order to ensure the completeness of the payment of taxes, the Federal Tax Service sends to taxpayers - organizations (their separate subdivisions) notices of the calculated amounts of transport and land taxes.

The message is prepared on the basis of the information available to the tax authority, including the results of consideration of the application for a tax exemption. If the tax authority does not have information about the organization's application for a tax relief at the date of the message formation, it will include the amounts of calculated taxes without taking into account the benefits, which may lead to the identification of arrears or recalculation of tax. Therefore, it is advisable for an organization to submit its tax credit application for 2020 during the first quarter of 2021.

Answers to frequently asked questions about the granting of transport and land tax exemptions to organizations are available on the website of the Federal Tax Service. You can find out about the right to tax relief for 2020 by using the service "Background information on property tax rates and exemptions".

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SUBSIDIARY LIABILITY: POSITIONS OF THE ARBITRATION COURTS OF THE CIRCUITS FOR 2020

11.01.2021

Subsidiary liability (SL) has become one of the hottest topics in bankruptcy law. We have collected for you the conclusions of the court disputes on this topic. All of them were considered by the arbitration courts of the districts.

1. If the failure to transfer documentation did not result in a substantial hindrance to bankruptcy proceedings, the court may refuse to engage the CO

The district court explained: the ex-head can prove that the failure to provide certain documentation did not result in a significant hindrance of bankruptcy procedures. This is understood to mean the inability to:

Identify the debtor's circle of controlling persons (CLPs) and its counterparties;

to establish the debtor's assets and identify them;

to identify suspicious transactions and raise the issue of their contestation;

Establish how decisions were made by the debtor, analyze them and recover damages from the guilty parties.

Ruling of the Arbitration Court of the Moscow District in case No. A41-86480/16 of January 21, 2020

2. The transfer to the trustee in insolvency of the balance sheet on account 62 is not enough to fulfill the corresponding obligation of the debtor's head

The District Court reminded that each fact of economic life shall be formalized by a primary accounting document in the unified form. Balance sheet - this is an internal document of the organization. By itself, without the primary documents it is not unconditional evidence confirming the fact of business transactions. In this regard, the transfer of the ex-leader to the trustee in bankruptcy the balance sheet on account 62 does not confirm the performance of his duties established by Art. 2 art. 126 of the law on bankruptcy.

Ruling of the Arbitration Court of the Northwestern District in case No. A56-18880/2016 of March 3, 2020

3. if the courts believe that the debtor fell into bankruptcy not because of unfair actions of controlling persons, it is necessary to specify a different reason for bankruptcy

The district court addressed the Supreme Court's position from Ruling No. 305-ES19-10079 of September 30, 2019: a dispute to bring a CO due to inability to satisfy creditor claims should always be considered with an examination of the causes of bankruptcy. A debtor can go into bankruptcy, for example, because of the effects of market factors. And, if the courts find the CO's fault in the debtor's bankruptcy absent, they must point to a different reason for the debtor's insolvency.

Ruling of the Arbitration Court of the West Siberian District in Case No. A45-81/2018, June 19, 2020

4. When calculating the amount of CO for failure to file for bankruptcy, it is necessary to take into account only those obligations that arose after the onset of the relevant obligation

The district court disagreed with the appeal, which brought the ex-head of the CO for 18 million rubles. Thus, the defendant should have filed an application no later than July 5, 2014, however, the amount of liability included obligations that arose before that date. The cassation reminded that it is the failure to fulfill the obligation to file an application for initiation of bankruptcy that results in the insolvent debtor having additional debt registry obligations - both to counterparties and to the tax authorities - in a situation where the existing ones cannot be discharged.

Ruling of the Arbitration Court of the Northwestern District in case No. A56-5033/2016 of August 31, 2020

5. The absence of a record in the employment book of the CEO of a debtor about the position he holds does not prevent him from being brought to the CO: the head of the LLC is elected by the general meeting of participants or the sole participant

The district court overturned the acts of the lower instances, which did not bring to CRM, referring to the fact that the head was nominal and did not make important decisions. The cassation reminded that nominal and actual CEOs are jointly brought to CO. The extent of nominal manager's liability may be reduced if the actual decision maker has been found due to his information. At the same time it is assessed to what extent the actions of information disclosure helped to restore the rights of creditors.

Ruling of the Arbitration Court of the Moscow District in case No. A40-23715/19 of September 29, 2020

6. The court's seizure of a debtor's documentation from an ex-manager by itself provides grounds for bringing a CO

The district court overturned the acts of lower instances which had brought the ex-head of the debtor to a CO. The court asserted that the norm of Article 61.11 was applied formally in this dispute. It also explained that in case of insufficient data, the bankruptcy trustee could have first contacted the defendant for information, but there was no evidence of such cooperation or evasion of explanation by the ex-manager in the case.

Ruling of the Arbitration Court of the Northwestern District in case No. A56-44467/2017 of October 30, 2020

 

7. The absence of objections of the bankruptcy trustee on the issue of the transfer of documentation cannot exempt from the CO on the relevant ground

This was pointed out by the district court, referring to the establishment of facts of unfair exercise of duties by the bankruptcy trustee. An approach where a former manager of a debtor may limit himself to handing over documentation that suits the crisis manager and not hand over other documentation that allows to establish the movement of assets, effectively violates the rights of creditors. Since the bankruptcy trustee was against bringing the CDL to the CO, the district court pointed to the need for a more thorough check on the integrity of the CDL when transferring documentation.

Ruling of the Arbitration Court of the North Caucasus District in Case No. A22-1073/2018, November 11, 2020

8. The defendants' possible benefit from the debtor's activities does not, by itself, indicate their interest in violating the law on taxes and levies

That was the conclusion the district court reached when it considered the dispute over the application to bring the CDL to the CO. The only ground on which the debtor fell into bankruptcy was a tax surcharge. The cassation indicated that the transfer of property to the debtor in the amount greater than the accrued arrears disproved the arguments of the tax authorities that the debtor company was established only for tax evasion and receiving an unjustified tax benefit. Accrual-penalty sanctions the court called not constituting the debtor's benefit.

Ruling of the Arbitration Court of the North Caucasus District in case No. A32-728/2017 of November 30, 2020

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THERE IS A NEW REVIEW OF COURT PRACTICE ON DISPUTES RELATED TO SURETYSHIP

28.12.2020

On December 24, 2020, the Twelfth Arbitration Court of Appeals (12th AAC) released another review of court practice, this time it deals with surety disputes. Previously, the 12th AAC published a practice review on lease relations, claims due to unjust enrichment, and a review on tax disputes.

Some of the presented cases in the new selection are related to insolvency cases (items 2, 4, 5).

- Financing by a participant or other affiliated person may constitute not only a loan agreement, but also a surety agreement. Thus, the relationship between the member of the company and the debtor can be reclassified as arising from the increase in share capital (ruling of the 12th AAS of May 14, 2019, ruling of the Arbitration Court of the Volga District of August 8, 2019 in case No. A57-7043/2016).
- The company issued a surety to the bank, which led it to bankruptcy: the amount of obligations from the collateral amounted to 99% of the company's assets. The courts invalidated the transaction because its size was large, and there was no proper evidence of the general meeting of participants and approval of the surety agreement. The courts also drew attention to the bank's failure to exercise due diligence as a professional participant in the turnover. In particular, the minutes of the general meeting of participants regarding approval of the transaction reflected the number of the disputed surety agreement and the date of its conclusion, although at the time of approval the participants could not have had such information. The courts explained that the bank should have conducted a legal and financial examination of the company, assessed the risks and requested documentary evidence of compliance with the requirements of the LLC law (ruling of the 12th Arbitration Court of June 9, 2018 and ruling of the Arbitration Court of the Volga District of October 10, 2018 in case No. A12-28689/2017).
- In a bankruptcy case, the affiliated lender, borrower and guarantor should justify reasonable economic motives for issuing the surety. If no explanation is provided, it is possible to talk about the creation of such interaction, which allows the formation of a controlled fictitious debt to reduce the percentage of claims of independent creditors (ruling of the 12th AAS of January 21, 2020, ruling of the Arbitration Court of the Volga District of July 6, 2020 in case No. A57-22879/2017).

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BANKRUPTCY IN THE REVIEW OF COURT PRACTICE FROM THE ARBITRATION COURT OF THE FAR EASTERN DISTRICT

21.12.2020

The Arbitration Court of the Far Eastern District (ACFD) has published a review of practice for the 2nd quarter of 2020. The selection included three disputes in which the rules of the insolvency law were applied (clauses 6 and 7 from the first block and clause 5 from the second block).

There was a dispute over a buyer's recovery of a prepayment from a supplier for which goods had not been delivered. The supplier had filed for bankruptcy after the buyer had paid the amount in dispute. The question arose as to whether the claims were current or on the books. The district court disagreed with the lower courts, which had qualified the claims as current. The court noted that the date of the alleged delivery of the goods does not matter here. The disputed claims must be filed directly in the bankruptcy case. If they are filed in the lawsuit, the lawsuit is left without consideration.

Resolution of the Arbitration Court of the Far Eastern Federal District in case No. A24-1808/2019, January 22, 2020

 

A situation where a creditor provided an escrow loan to a debtor in bankruptcy proceedings to transfer salaries to employees, and the debtor spent the money as intended, does not turn the debt to the creditor into obligations related to the employment relationship of the debtor and its employees. That is, the creditor's claims will not be satisfied in the second line of current payments. The district court noted that the disputed claims belong to the fifth order of current payments as arising out of a loan agreement. The mere fact that the creditor and the debtor agreed on the purpose of the transaction does not negate the need to comply with the order of priority established by law.

Judgment of the Arbitration Court of the Far Eastern Federal District in case No. A73-14687/2015 of March 11, 2020

 

The head of the debtor because of the failure to transfer the documentation to the arbitration manager can be held liable in the form of a judicial fine in accordance with Part 1 of Art. 332 of the Arbitration Procedure Code, as well as - to administrative responsibility under Part 4 of Art. 14.13 of the Code of Administrative Offences. The courts of three instances rejected the arguments of double prosecution for the same offense, because the failure to act infringes not only on the relationship concerning the observance of the law on bankruptcy, but also on the relationship related to the performance of the obligation to execute a judicial act. The courts classified what happened as two separate offenses.

Judgment of the Arbitration Court of the Far Eastern Federal District in case No. A04-3570/2019 of January 29, 2020

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THE AMOUNT OF THE ARBITRATION MANAGER'S REMUNERATION MAY BE REDUCED EVEN 5 YEARS AFTER ITS ESTABLISHMENT

07.12.2020

The Arbitration Court of the Moscow District decided to review the judicial act on newly discovered circumstances (decision in the case № A41-23271/14 of 2 December 2020).

The essence of the dispute
In 2014, the company was subject to surveillance and a temporary manager was appointed. In July 2015, the court approved the amount of interest on the manager's remuneration - 811.9 thousand rubles.

In September 2019, the creditor applied to the court to reconsider this ruling on newly discovered circumstances. The creditor believed that the amount of payments to the manager should be reduced, as the result of the sale of the debtor's assets their value was 14 times less than the price that the court took into account in calculating the interest (66 million rubles against 919 million rubles).

The courts of two instances refused to satisfy the claims. In addition, it was stated that the applicant missed the deadline to apply to the court. Thus, in May 2017 the last price increase auction was declared invalid, therefore, at that time the creditor had to learn that the value of the debtor's assets would be lower than in the financial statements.

 

Position of the County Court
In the cassation agreed with the creditor: in this situation shall apply paragraph 3 of paragraph 12.6 of the Resolution of the Plenum of the Supreme Arbitration Court № 97 of 25 December 2013. According to these clarifications, if at the time of the court act there were no doubts about the reliability of the financial statements, but at the end of the sale of assets it turned out that the amount received is much lower than the indicators indicated in the statements, the court act may be revised.

Also, the district court did not agree with the missed deadline for the applicant to apply to the court. In this dispute, the starting point will be the placement of the manager in the ERDF the announcement of the conclusion of contracts of sale of the debtor's assets - 15 August 2019. Since the creditor petitioned the court in September 2019, the three-month period was not missed.

The acts of the courts of first and appellate instance were cancelled, the dispute - sent for a new consideration.

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THE FACT OF THE EXISTENCE OF ACCOUNTS PAYABLE DOES NOT IN ITSELF INDICATE THE OCCURRENCE OF SIGNS OF OBJECTIVE BANKRUPTCY

14.12.2020

The Arbitration Court of the Moscow District decided the issue of bringing the head of the debtor to vicarious liability for failure to fulfill the obligation to initiate bankruptcy proceedings (ruling on case No. A40-96365/2018 of December 7, 2020).

The crux of the dispute.
The bankruptcy trustee asked to bring to subsidiary responsibility the head of the company, who was from December 2017 to December 2018.

The trustee pointed out that the manager failed to fulfill the obligation to file an insolvency petition against the debtor. The courts of two instances agreed with the petitioner, explaining that such action was required between February and December 2018.

The supervisor filed a cassation appeal.

 

Circuit Court Position.
In the cassation, the adopted judicial acts in terms of bringing the head to subsidiary responsibility were cancelled, sending the dispute for a new consideration.

The District Court referred to the explanations from the Resolution of the Plenum of the Supreme Court № 53 of December 21, 2017. Thus, in order to resolve the issue of the emergence of the director's obligation to file for the debtor's insolvency, it is necessary to establish the signs of objective bankruptcy of the debtor. The mere fact of the existence of debts to creditors cannot speak of the occurrence of signs of objective bankruptcy.

At the same time, determining the date of the obligation to initiate insolvency proceedings as February 2018, the courts pointed only to the debtor's unpaid accounts payable and obligatory payment debt. The lower courts did not investigate the circumstances of whether the debtor had stopped performing obligations at that point due to insufficient money or assets.

In addition, the court stated that the amount of liability on the stated ground had been determined incorrectly.

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SALE OF JOINTLY OWNED DEBTOR'S PROPERTY: HOW TO CALCULATE THE REMUNERATION FOR THE MANAGER? 

30.11.2020

The Arbitration Court of the Moscow District considered the amount in which the financial manager should receive remuneration from the sale of property (decision in case № A40-206075/2016 of November 23, 2020).

The essence of the dispute

The financial manager asked the court to approve interest on remuneration in the amount of 441 thousand rubles in connection with the sale of the debtor's pledged property. The property - an apartment jointly owned by the debtor and his wife - was sold at the auction for 6 million 300 thousand rubles.

The court of first instance approved interest in the amount of 110.25 thousand rubles. The court proceeded from the fact that the division of joint property of the spouses and allocated the share of each of them in the prescribed manner was not carried out, which means that the calculation of interest should be made from half of the amount received (as a result, it is 220.5 thousand rubles). However, since the financial manager was not performing his functions properly, the interest to be paid should be halved.

The Court of Appeal considered that the manager should pay 220.5 thousand rubles. It was pointed out here that there were no grounds for calculating remuneration based only on the realized share of the debtor. At the same time, the court agreed that the interest should be halved due to the improper conduct of the financial manager.

 

Position of the District Court

It was explained here: the appeal correctly pointed to the lack of legal grounds for calculating the remuneration from half the value of the sold property of the spouses, who were in the pledge on a common obligation (it is assumed that in the transaction on the disposal of common property by one of the spouses, he acts with the consent of the other).

However, the district court did not agree with the reduction of remuneration by half. It was stated that in such disputes it was necessary to prove:

- cases of recognition by the court of the manager's actions as unlawful;

- the fact that the expenses incurred by the manager are unjustified;

- invalidation of the transactions made by the manager;

- the fact that the manager had caused losses to the debtor;

- the fact of the manager's evasion from the execution of powers.

Since the courts had not established such circumstances, the dispute in the part of remuneration reduction was sent for a new consideration.

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THE SUPREME COURT EXPLAINED HOW THE TERMS OF THE INVESTMENT CONTRACT ARE FULFILLED IN THE EVENT OF BANKRUPTCY

23.11.2020

The Supreme Court considered a dispute about the obligations from the investment contract that the construction company had before the public formation (definition No. 305-ES18-25276 (5) of November 16, 2020).

The essence of the dispute

To reconstruct part of the residential area in 2005, an investment contract was concluded between the construction company (hereinafter - the debtor) and the administration. As compensation for the demolition of municipal premises, the parties provided for the transfer of premises with an area of 489 sq. m. to the administration.

A public land plot lease agreement was concluded.

Permission to put the constructed object into operation was issued in May 2011, the lease contract was terminated a month later on the basis of the agreement.

In July 2011, insolvency proceedings were instituted against the debtor.

Since the debtor had not handed over the premises to the administration, it applied to court. The lawsuit was granted, and in September 2016 a gratuitous transfer agreement was signed with the debtor. The title to the premises was registered with the municipal entity.

In November 2018, the debtor was declared bankrupt. The debtor's bankruptcy manager petitioned the court to invalidate the disputed property transfer agreement and to apply the consequences of the transaction.

The court of first instance sided with the administration, but the appeal decided otherwise. Here, the claims of the bankruptcy manager were satisfied, considering that the administration was given preference over other creditors. The District Court upheld the conclusions of the appeal instance.

 

The position of the Supreme Court

The Supreme Court upheld the ruling of the court of first instance. It was stated that the object, which is being built on a public land plot by attracting extra-budgetary sources, is considered the share property of the parties to the contract concluded before the beginning of 2011, if it provides for the distribution of space between the parties.

Since the object erected before the beginning of the insolvency proceedings was by virtue of the law in shared ownership; and the debtor failed to fulfill its obligations from the investment contract, the public entity even in bankruptcy of the debtor retained the right to receive due under the terms of the contract.

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A GOOD-FAITH LANDLORD MAY TERMINATE THE CONTRACT EVEN IF THE LESSEE GOES INTO BANKRUPTCY

16.11.2020

The Supreme Court considered a dispute over the possibility of termination of the land plot lease agreement with the debtor, which is in the stage of bankruptcy proceedings (Decision No. 303-ES16-19972 (2) of 5 November 2020).

The essence of the dispute

The debtor and the regional Property Ministry signed a land lease agreement for the period from 2012 to 2015. After the expiry of the contract, the debtor continued to use the land plot. In November 2018, the Ministry of Property, referring to the delay of the counterparty to pay, announced the refusal to fulfill the lease contract.

The Company filed an application with the court to invalidate the unilateral refusal of the Property Ministry.

In three instances, the company's claims were satisfied. The courts considered that the right to lease the land plot was in the competitive mass of the debtor and was subject to implementation in the established order. The agreement itself contained conditions on the debtor's ability to transfer rights and obligations under the agreement to third parties.

Accordingly, as a result of the refusal of the Ministry of Property to execute the contract, the liquid asset was taken out of the bankruptcy.

The Ministry of Property appealed to the Supreme Court with a cassation appeal.

 

Position of the Supreme Court

The court stated that the parties had initially made a deal for three years. After the expiration of this period, when the debtor continued to use the land, the contract was resumed for an indefinite period. The peculiarity of such an agreement is the right of each of the parties to refuse to fulfill it by informing the counterparty in advance.

The introduction of bankruptcy proceedings against the lessee, noted the Supreme Court, does not deprive the lessor of the right to terminate the contract prematurely.

The argument of the bankruptcy manager about the bad faith of the Property Ministry was also rejected. The court pointed out that, although in a bankruptcy case there are divergent interests, the court must find a balance. In this regard, the Minimushchestvo as a lessor may be recognized as an entity that is abusing the right. However, the opposing party must disclose what exactly this abuse is.

Since no evidence of abuse of right was presented in the case and the court did not establish such circumstances, there were no grounds for the lower authorities to declare the transaction invalid. The claim was denied to the bankruptcy trustee.

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CREDITORS CANNOT REPLACE THE DEBTOR'S HOME WITH A MORE COMPACT ONE

09.11.2020

The Supreme Court considered the issue of challenging the bankrupt's decision of the creditors' meeting (Decision No. 309-EC20-10004 of 29 October 2020).

The essence of the dispute

The debtor asked to invalidate the decisions of the creditors' meeting. He owned an apartment with the area of 40.3 sq. m. The creditors made a decision to provide the debtor with an apartment of 19,8 sq. m. in the same city.

The court of first instance granted the debtor's claim, considering that the creditor scheme violated the bankrupt's right to a single apartment.

However, the appeal and the District Court decided otherwise. It was explained here that the creditors had the right to make such a decision because the debtor was not paying for its obligations. The debtor does not use the controversial 40.3 sq. m. apartment as a residential one, he is not married and has no dependents, so providing him with a smaller area of housing will allow him to repay the debt in part.

 

The position of the Supreme Court

The Supreme Court noted that, although the law gives creditors the opportunity to make decisions on issues not directly related to their competence, the results of such decisions should not violate the right to housing of the debtor.

The court turned to Constitutional Court Ruling No. 11-P of May 14, 2012, according to which the possibility of providing substitute housing is blocked until amendments are made to the legislation. At the moment there are no such norms. Nevertheless, the creditors' meeting arbitrarily determined a sufficient level of provision of housing to the debtor, which contradicts the said Ruling.

The Supreme Court also noted: the controversial 40.3 sq. m. apartment cannot be considered luxurious for a bankrupt.

The arguments of the creditors were disproved. In particular, the court explained that the debtor's attempt to convert residential real estate into non-residential real estate does not in itself indicate that it has another dwelling.

The Supreme Court summed up: the decision of the creditors' meeting resulted in the debtor being deprived of private property and being forced to own another dwelling.

The decision of the court of first instance was left in force.

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THE COUNTY COURT EXPLAINED WHETHER THE REQUIREMENTS FROM THE ALIMONY AGREEMENT SHOULD BE INCLUDED IN THE REGISTER IN FULL

26.10.2020

The Arbitration Court of the Moscow District considered the dispute in the bankruptcy case of an individual (decision in case № A40-105789 of 21 September 2020).

The essence of the dispute

The debtor's wife asked the court to include 130 million rubles in the register. Two years before the debtor was declared bankrupt, an agreement was concluded to pay child support for two minor children, each entitled to £20,000 monthly. The debtor failed to meet its obligations.

The court of first instance refused to satisfy the claims in full, since it was not proved that at the time the agreement was concluded the debtor had the financial capacity to fulfill it. Also noted was the atypical behavior of the wife, who had not previously attempted to obtain from the debtor the payments due to her.

The court of appeal did not agree with the findings of the lower court. It was pointed out here that the alimony payment agreement was notarized, it was not declared invalid. Since an agreement on legal validity is equated to a writ of execution, there are no legal grounds to change the amount claimed.

 

Position of the County Court

A cassation appeal against the decision of the court of appeal was filed by the creditor of the debtor.

District court recalled that in the bankruptcy case, the register includes only those obligations that are valid and confirmed by appropriate evidence.

By virtue of the provisions of the Family Code, the conclusions of the court of appeal that the claims of the debtor's wife are to be included in the register are correct. However, when the amount of alimony under the agreement seriously exceeds the amount of alimony that could have been paid by virtue of law (a share of income), it may cause reasonable claims from creditors.

The courts should have worked out a balance between children's maintenance rights and creditors' rights to satisfy their claims. In doing so, it is important to take into account that children's interests in relation to other creditors will take precedence.

The district court noted that the fact that an agreement worsens the position of creditors does not in itself lead to its qualification as invalid. In order to declare such a transaction null and void, the courts should have assessed the creditor's arguments about the atypical nature of the transaction.

Since the court of appeal did not consider the dispute taking into account the balance of creditors, the first instance refused to satisfy the claims of the spouse in full, the dispute was sent for a new consideration.

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IF CREDITORS OBJECT TO FINANCIAL REHABILITATION, IT MAY ONLY BE INTRODUCED IF CERTAIN CONDITIONS ARE MET

02.11.2020

The Arbitration Court of the Ural District considered a dispute about the possibility of introducing financial rehabilitation in respect of the debtor at the initiative of its participants (decision in case No. A71-478/2019 of October 27, 2019).

The essence of the dispute

The interim manager requested that the debtor be declared bankrupt and that bankruptcy proceedings be instituted against him.

The debtor applied to the court after 6 days with a request to introduce financial rehabilitation for two years. He referred to the fact that the meeting of the participants made the relevant decision.

The court introduced a financial rehabilitation procedure. The debt repayment schedule was approved, according to which the debtor undertook to pay the creditors 150 thousand rubles for six months, the next six months - 300 thousand rubles, the rest period - 2 million 650 thousand rubles. As security for fulfillment of obligations a guarantee of a third-party company was provided, which is 20% more than the amount of claims against the debtor. The appeal was upheld by the court of first instance.

The bank did not agree with the introduction of financial rehabilitation. It considered that it was impossible to restore the debtor's solvency. Moreover, in violation of the law, no bank guarantee was provided and the schedule was for two years instead of one.

 

Position of the County Court

The cassation corrected the lower courts: paragraph 3 of Article 75 of the law on bankruptcy provides that if the creditors insist on the debtor's bankruptcy, and the courts make a ruling on the introduction of financial rehabilitation, two conditions must be met.

First, the procedure is introduced at the request of the debtor's participants with the provision of a bank guarantee.

Secondly, the schedule for the repayment of claims must provide for monthly, proportional, equal payments during the year.

The lower courts did not take into account the fact that this provision is imperative and is designed to protect the rights of creditors objecting to financial rehabilitation.

Having considered the conclusions of the first and appeal courts premature, the cassation sent the dispute for a new consideration.

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IF THE LOAN WAS GRANTED IN NON-CASH FORM, THE CREDITWORTHINESS OF THE PERSON WHO ISSUED IT IS ASSUMED

19.10.2020

The Supreme Court considered a dispute over the inclusion of the affiliated creditor's claims in the register (Decision No. 305-ES19-17086 (2) of October 12, 2020).

The essence of the dispute

The Company asked for RUB 14 million in claims against the debtor to be included in the register. The claims arose from an interest loan agreement concluded in May 2014. The debtor repaid only RUB 2 thousand of the debt under this contract, the remaining obligations were not fulfilled.

The court of first instance refused the applicant. Here the company's claims were considered unfounded, because the parties to the contract - affiliates. Also the court found no evidence to prove that the company could provide the debtor with a loan. They agreed with this in the appeal.

However, the district court expressed a different opinion: since the loan was granted in non-cash form, the creditworthiness of the person who issued the funds is assumed. Reasonable doubts about the imagination of the loan agreement were not given by the objectors. The court considered the financing provided to the debtor as compensatory and subject to satisfaction in the order preceding the distribution of the liquidation quota.

 

Position of the Supreme Court

Here they agreed with the district court: a person who points to the invalidity of the loan agreement, the execution of which was carried out in non-cash form, must bring at least indirect evidence that puts the existence of debt in question.

Despite this, the conclusions of the district court on the validity of the company's claim are premature.

Thus, as early as in the first instance, an independent creditor objected to the affiliate's claims, pointing to the fact that the latter had missed the deadline for limitation. The contract between the company and the debtor provided for a period of return of debt and payment of interest - May 2016. The Company filed its claims against the debtor in September 2019, i.e., beyond the three-year limitation period.

The omission of such a deadline, as stated by the disputing party, is the reason for the dismissal of the claim.
 

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THE ARBITRATION COURT MAY DISAGREE WITH THE COURT OF GENERAL JURISDICTION IN THE QUALIFICATION OF THE TRANSACTION, BUT THIS WILL REQUIRE JUSTIFICATION

12.10.2020

The Arbitration Court of the Moscow District considered a dispute about the possibility of the arbitration courts to disagree with the opinion of the court of general jurisdiction (decision in the case № A40-60474/2018 of 7 October 2020).

The essence of the dispute

The bankruptcy manager of the debtor has applied to the court with a request to invalidate the signing of the employment contract. The applicant pointed out that the transaction was made during the period of insolvency of the debtor, and the salary (300 thousand rubles) provided for the assistant manager was 14.5 times higher than the average salary in the company. The manager also referred to the lack of evidence that the employee had performed any work functions.

The defendant objected that the district court had ruled that his dismissal from that position was illegal; the debtor had been charged a salary of 4.7 million rubles.

The courts of first instance and appeal established that the transaction had been completed less than a year before the bankruptcy proceedings were initiated. At that time the debtor had unfulfilled obligations in the amount of RUB 40 million, which the defendant by virtue of his position could not but know about.

The courts also referred to the inequality of counterfeiting, since they found no evidence that the defendant was present at work.

In this connection, the courts summarized: the payment was too high and the fact of the transaction violated the creditors' rights.

As for the act adopted by the district court, it was noted that in a bankruptcy case the transaction is assessed on special grounds.

 

Position of the district court

We did not agree with this in the cassation. Here, attention was drawn to the decision made by the district court, which contained information about signs of forgery of local acts related to the defendant's performance of labor functions. There was also information about testimonies confirming the defendant's work place.

The lower courts did not explain why they came to the opposite conclusions. However, according to the established practice, in the subsequent court act it is required to specify the detailed substantiation on which the court took a different position.

Also, the district court drew attention to the need to verify the appeal of the bankruptcy manager: whether it is not aimed at overcoming the binding force of the judicial act of the court of general jurisdiction, which is unacceptable.

In addition, the first and the court of appeal came to contradictory conclusions. On the one hand, it was stated that the defendant did not actually work, and on the other - that he by virtue of his official position must know about the difficult financial situation of the debtor.

The dispute was sent for new consideration.

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TO EXCLUDE REQUIREMENTS FROM THE RTC IT IS NECESSARY TO CANCEL THE RELEVANT COURT ACT

05.10.2020

The Ruling of the Arbitration Court of the Ural District in case No. A07-25883/2016 dated September 28, 2020 deals with the issue of acceptable means of protection for a creditor who disagrees with the inclusion of other persons' claims in the register of creditors' claims (RTС).

The essence of the dispute

The demands of the company "SIC STNK Spectrum" were recognized by the court as justified; they were included in the third stage of RTC.

Company "NefteGazStroyKomplekt" (hereinafter also - the applicant) asked the court to exclude the disputed claims from RTC. The Company referred to the debtor's affiliation with NIIC STNK Spectr and believed that they had built a relationship to create a controlled debt.

The first instance agreed with the applicant. However, this act was annulled on appeal. The court stated that the claims of the company "NIIC STNK "Spectr" are of corporate nature. At the same time, they are subject to satisfaction - but before the distribution of the liquidation quota.

 

Position of the District Court

The cassation reminded that the reason for excluding claims from the RTC are court acts. Accordingly, the applicant must seek the abolition of such an act.

Among the conditions under which the court is entitled to perform such an action, include the absence of reasons for finding the claims of creditors in RTC. In this dispute, no such circumstances were found.

The question of the validity of the claims of the company "NIIC STNK "Spectrum" was considered in the court of first instance, the definition came into force.

Meanwhile, the applicant, wishing to exclude the disputed claims from RTC, actually tried to review the judicial act in the order not established by law, indicated in the cassation. The courts did not evaluate such procedural behavior of the applicant.

The district court noted: arguments of the applicant can be only put in a substantiation of the statement on revision of earlier made by the court conclusions - according to requirements of the procedural legislation. In this connection the dispute was sent for new consideration.

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THE MINISTRY OF ECONOMIC DEVELOPMENT: EXTENSION OF THE BANKRUPTCY MORATORIUM AND BUSINESS SUPPORT MEASURES

21.09.2020

About deferred bankruptcies 

At the meeting, Deputy Economic Development Minister Ilya Torosov discussed a possible extension of the bankruptcy moratorium. 

The moratorium was put in place for six months - until October 6, 2020 - and during this time more than 500 thousand organizations and about 1.5 million individual entrepreneurs have used this measure of support. There were positive results of the measures taken - for example, the budget received mandatory payments from these economic entities. At the same time, it is possible that the situation of creditors who are not receiving execution and are unable to initiate bankruptcy of debtors during the moratorium period may worsen. It is reported that at the end of the meeting the information is being prepared for shipment to the Russian Government, which will decide on the extension of the moratorium.

Information dated September 18, 2020

 

About the new tax regime

The Russian Chamber of Commerce and Industry has developed a bill allowing family microenterprises to use the new tax regime similar to the income tax. This regime is called a family or collective patent.

It is also proposed to regulate the activities of family microenterprises - for example, to make it easier for the employer to interact with employees. The Ministry of Economic Development believes that this innovation will support microenterprises.

At present, the draft law is aimed at revision.

Information dated September 18, 2020

 

On coronavirus support measures

The results of assistance to business during the pandemic are summed up. Thus, every fourth businessman - about 1.7 million small and medium business entities - was included into the list of victims.

One of the latest support measures was compensation of expenses for purchase of personal protective equipment. From 383 thousand submitted applications 293 thousand were satisfied - these subjects met the criteria established by the legislation. The total amount of support here was over 11 billion rubles.

Information dated September 17, 2020

 

On new control and supervision activities

Alexei Khersontsev, State Secretary of the Deputy Minister of Economic Development, spoke about the implementation of the new law on state and municipal control. It was pointed out that the main message of regulation is the refusal of inspections as the only possible way to ensure business compliance with the law. Preventive measures, such as information and warnings, will come to the foreground. The law names a total of 8 such positions.

Information dated September 16, 2020

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WHAT CAN CHANGE IN THE TAX MONITORING SYSTEM?

28.09.2020

In the lower house of Parliament on September 24, 2020 was registered a bill № 1025470-7 with amendments for the Tax Code - in terms of changes to the rules on tax monitoring. The bill was introduced by the State Duma deputies.

The reason for this initiative was the conclusions from the analysis of the practice of tax monitoring. It is noted that the assessment of the use of this form of monitoring is ongoing, it is conducted by the State Duma Committee on Budget and Taxes, as well as the Expert Council under the Federal Tax Service of Russia.

The projected amendments envisage:

change, according to which desk audit is not appointed when submitting reports or adjusted reports for the tax period of the year subject to monitoring during the tax monitoring. Exception: early completion of monitoring in less than three months from the reporting date;
determination of new rules of tax control when auditing a VAT return that claims the right to tax refund, the amount of excise duty to be refunded; or a revised declaration directly during the monitoring period;
reducing the amounts for the transition of companies to tax monitoring, the accounting of personal income tax and insurance premiums in the aggregate calculated taxes - to expand the list of possible participants in tax monitoring. It is assumed that the amount for the calendar year should be equal to 100 million rubles, not 300;
for participants of consolidated groups of taxpayers it is planned to exclude application of the sum criteria;
correction of the term of tax monitoring in case of elimination of grounds for desk audit, as well as the procedure for extension of the term, if more accurate reporting is submitted;
ensuring online interaction with tax authorities to reduce the cost of providing required documents to organizations;
Eliminating the need to submit a new application for tax monitoring - if extension of monitoring is required;
providing taxpayers with additional opportunities to send explanations or voluntary clarification of tax obligations.

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WHEN WITHDRAWING ASSETS THROUGH A TRANSACTION CHAIN, A COVERED TRANSACTION IS SUBJECT TO VALUATION

07.09.2020

The Supreme Court considered a dispute about challenging the transaction made by the debtor (Decision No. 306-EES17-11031 (6) of 27 August 2020).

The essence of the dispute

The tender manager and the creditors applied to the court. They believed that the alienation of the debtor's property shortly before the bankruptcy and the subsequent chain of transactions with the debtor indicated the invalidity of legal relations.

In October 2015, the debtor sold his heating systems to the company "VSU" for 575 thousand rubles, the payment was executed by a set-off agreement.

In December of the same year, the debtor was subject to surveillance.

In March of the next year, the company "ВСУ" sold the disputed property to the company "RSU", the same day the purchase was paid by a payment order for 600 thousand rubles.

A month later, the debtor was declared bankrupt and RSU sold the heating system to its founder, who at the same time was the debtor's deputy general director. Payment was made net of counterclaims.

During the re-examination of the dispute, the court of first instance stated that the entire transaction chain was invalid, but in terms of the claims against the last buyer, the proceedings were terminated, as the defendant was a natural person, and the arbitration court had no jurisdiction over the dispute. The District Court also upheld the termination of the proceedings on appeal.

 

Position of the Supreme Court

The Supreme Court reversed these acts. It was pointed out that in such circumstances two options were possible:

- in the first case, the seller's expression of will corresponds to his actual will;

- in the second case, the seller had no intention of being bound by the contract. This is, for example, the withdrawal of assets - when in reality there is only a transaction of transfer of property to the beneficiary.

Here, the law and order recognizes only the transaction to be covered, while the whole chain of transfer of disputable property can be carried out to cover it. In this case, the only concealed transaction may be invalidated - on the basis of Article 61.2 of the law on bankruptcy.

At the same time, the lower courts have not investigated the issue of the existence of only one transaction in reality - the withdrawal of the asset in favor of the individual as the ultimate owner.

This was pointed out by a number of circumstances: the companies VSU and RSU did not have reasonable intentions to acquire heating systems, they alienated an asset soon after its purchase, etc.

Having failed to investigate these disputed points, the courts made a premature conclusion to terminate the proceedings against the individual. The dispute was sent for new consideration.

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FAS TOLD ABOUT LIQUIDATION OF FINANCIAL ORGANIZATIONS AND UNITARY ENTERPRISES

14.09.2020

There may be changes in the liquidation of financial companies

The Federal Antimonopoly Service (FAS) reported on the development of a bill that provides for amendments to the law on deposit insurance in banks. The document, developed for the development of competition, was agreed with the Ministry of Finance, Central Bank and Ministry of Economic Development and transferred to the Government of Russia.

The bill proposes to change the procedure for engaging specialists (e.g. appraisers, auditors, etc.) in situations of liquidation of financial institutions or preventing their bankruptcy.

Today the involvement of such entities is based on the Regulations approved by the Board Decision of the Deposit Insurance Agency on July 20, 2015. However, the FAS points out that the existing procedure is not transparent and some requirements to the specialists involved are groundless.

The amendments provide for a new procedure, the requirements to which will be agreed between the Central Bank and FAS.

Andrey Kashevarov, Deputy Head of FAS, expressed the hope that the proposed innovations will bring to the market the maximum number of participants, which will lead to an increase in the quality of services provided by the Deposit Insurance Agency, and will have a positive impact on reducing their cost.

Source: information dated September 8, 2020.

 

Plans for liquidation and reorganization of unitary enterprises are being developed

Igor Artemyev, Head of FAS, reminded that in early 2020 a federal law was adopted prohibiting the establishment and operation of unitary enterprises in competitive markets. At the same time, there is a closed list of exceptions.

Before the beginning of 2025 such legal entities, if they are present in the commodity markets and were registered before the said law came into force, must cease their activities or undergo reorganization. Appropriate plans are being prepared and approved in the regions. 16 plans have been finally approved and 51 more are being prepared for completion.

Innovations are connected with the fact that FAS considers the presence of unitary enterprises on the market to be a phenomenon that negatively affects competition.

Analyzing Graphs

SUPREME COURT: IT'S NOT A SEPARATE INDENT AGREEMENT THAT NEEDS TO BE CONTESTED, BUT A CHAIN OF TRANSACTIONS.

23.03.2020

A dispute was resolved in which the courts insistently invalidated the debtor's agreement (Decision No. 305-EES19-16046 of 19 March 2020).

The essence of the dispute

From 2014 to 2017, the General Director of the debtor took loans from him, only 22.5 million rubles.

The debt was partially repaid in the amount of 4.5 million rubles. In early 2017, an agreement was concluded under which the debtor was entitled to three promissory notes worth 18 million rubles. The securities were transferred on the same day.

The bankruptcy trustee of the company considered the transaction invalid and applied to the court.

The courts of three instances agreed with him, as it happened during the annual period of suspicion. The bills of exchange were unsecured. The issuer of the securities, SB OOO Security, has signs of no business activity. And the founder of the issuer is OOO "Financial Assets", where the General Director also works as a defendant.

Accordingly, as a result of the transaction, the debtor has not received an equivalent counterprovision. In addition, the debtor has suffered harm, of which his CEO could not be unaware.

The position of the Supreme Court

The courts did not take into account that the day after the promissory notes were transferred the debtor sold them to its main shareholder, the Chairman of the Board of Directors.

Consequently, it was the main shareholder that became obliged to the debtor. The generality of the subject matter of transactions, the short interval between them and the non-payment of securities by the obliged person may be evidence of debt transfer.

The Supreme Court did not accept the arguments that the CEO in the cassation is trying to bring new arguments. It was noted that the applicant was asking for the correct qualification of the transaction chain, rather than establishing new circumstances or re-evaluating the evidence.

In addition, the Supreme Court of the Russian Federation pointed out that the bankruptcy trustee challenged the agreement on a waiver, while the entire transaction chain should have been taken into account. Accordingly, the chosen method of protection should be considered inappropriate. Debt transfer agreement can be challenged, in particular, on the basis of Article 61.2 of the law on bankruptcy - causing damage to the property rights of creditors.

The Supreme Court sent the dispute for a new consideration, recommending to conduct an expert review of the promissory notes, the financial condition of the issuer, as well as to involve in the consideration of the dispute SB "Security" LLC and the major shareholder.

Source:

https://legaltop.ru/overview/verkhovnyy-sud-osparivat-nuzhno-ne-otdelnoe-soglashenie-ob-otstupnom-a-tsepochku-sdelok/.

Inside Business

AMENDMENTS WERE MADE TO THE LAWS ON BANKRUPTCY AND ON APPRAISAL ACTIVITIES

23.03.2020

Federal Law No. 66-FZ of 18 March 2020 amended the work of appraisers.

Amendments to the law on appraisal activities

Part 2 appears in Article 15.1, according to which the organisation that has concluded an evaluation contract with the client is entitled to request the necessary information and documents. Also - to refuse to carry out an evaluation if there is a lack of information or the appropriate conditions are not met.

It will become easier to obtain the status of appraiser. Thus, the requirement to work as an assistant appraiser or appraiser within one year is excluded from Article 21. Requirements for three years of service remain the same.

The repeated examination will be allowed to pass faster - the interval will be not 90 days, but only 30.

New requirements to corporate changes in SRO of appraisers are established. So, now reorganization is possible only in the form of joining. 

From the date of making an entry in the Unified State Register of Legal Entities on such reorganization members of the attached SRO become members of the reorganized SRO. From that moment on six months are counted, during which the new members must confirm their compliance with the requirements. 

What is new in the law on bankruptcy?

In p. 5.1 of article 110 (sale of debtor's property) there is a new fifth paragraph. ERDF will include the date and number of the report on the condition of the debtor's property, the reasons for the assessment, information on the appraiser and his membership in the self-regulating organization, a description of the subject of the assessment, the established value, information on the expert opinion and the expert itself, its membership in the self-regulating organization, the results of the study. If the assessment subject belongs to a legal entity - details of the organization and the book value.

The trustee in insolvency must enter this information into the register within two working days after receiving a copy of the valuation report.

The other is .

The law also provides for minor amendments to the Federal Law-172 of June 2, 2016; for the Land Code: federal property lands may be granted to state corporations as property contributions on the basis of government decisions.

 

Source: https://legaltop.ru/legislative-news/vneseny-izmeneniya-v-zakony-o-bankrotstve-i-ob-otsenochnoy-deyatelnosti-/.

Inside Business

AMENDMENTS WERE MADE TO THE LAWS ON BANKRUPTCY AND ON APPRAISAL ACTIVITIES

10.08.2020

Federal Law No. 66-FZ of 18 March 2020 amended the work of appraisers.

Amendments to the law on appraisal activities

Part 2 appears in Article 15.1, according to which the organisation that has concluded an evaluation contract with the client is entitled to request the necessary information and documents. Also - to refuse to carry out an evaluation if there is a lack of information or the appropriate conditions are not met.

It will become easier to obtain the status of appraiser. Thus, the requirement to work as an assistant appraiser or appraiser within one year is excluded from Article 21. Requirements for three years of service remain the same.

The repeated examination will be allowed to pass faster - the interval will be not 90 days, but only 30.

New requirements to corporate changes in SRO of appraisers are established. So, now reorganization is possible only in the form of joining. 

From the date of making an entry in the Unified State Register of Legal Entities on such reorganization members of the attached SRO become members of the reorganized SRO. From that moment on six months are counted, during which the new members must confirm their compliance with the requirements. 

What is new in the law on bankruptcy?

In p. 5.1 of article 110 (sale of debtor's property) there is a new fifth paragraph. ERDF will include the date and number of the report on the condition of the debtor's property, the reasons for the assessment, information on the appraiser and his membership in the self-regulating organization, a description of the subject of the assessment, the established value, information on the expert opinion and the expert itself, its membership in the self-regulating organization, the results of the study. If the assessment subject belongs to a legal entity - details of the organization and the book value.

The trustee in insolvency must enter this information into the register within two working days after receiving a copy of the valuation report.

The other is .

The law also provides for minor amendments to the Federal Law-172 of June 2, 2016; for the Land Code: federal property lands may be granted to state corporations as property contributions on the basis of government decisions.

 

Source: https://legaltop.ru/legislative-news/vneseny-izmeneniya-v-zakony-o-bankrotstve-i-ob-otsenochnoy-deyatelnosti-/.

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LEGAL SUCCESSION IN PCS IS POSSIBLE EVEN AFTER LIQUIDATION OF THE DEBTOR

10.08.2020

The Supreme Court considered a dispute related to the succession in the Register of Claims of Creditors (RTK) of a liquidated debtor (Decision No. 305-ES20-5352 of August 6, 2020).

The essence of the dispute

The Company has included claims against the debtor in RTK. According to the assignment agreement dated 13 April 2017 these claims were transferred to an individual. The creditor in the register was replaced by a natural person from the company.

In September 2017, the bankruptcy proceedings against the debtor were completed and in November of the same year the debtor was removed from the register of legal persons.

Subsequently, on 1 April 2018, the assignment agreement between the company and the natural person was terminated by agreement of the parties.

The company asked the court to make another procedural substitution in the register, but the courts of three instances rejected it. The courts explained that the termination of the contract occurred after the closure of the bankruptcy proceedings and after the claims against the debtor were declared extinguished.

 

Position of the Supreme Court

The Supreme Court disagreed with those conclusions. Thus, it was stated that the bankruptcy proceedings were terminated with the entry in the register of legal entities of the debtor's activity.

However, the law on bankruptcy gives the right to creditors who have not satisfied themselves before the termination of the debtor's activities to receive the funds due to them at the expense of other persons who, while managing the debtor, caused him damage.

However, those rights could only be exercised when the person was the creditor in the debtor's insolvency proceedings. However, such creditor may transfer its claim to another person, either in full or in part.

In this case, the assignment contract was terminated, and therefore the company's application for a replacement in RTK was subject to satisfaction regardless of the moment of its termination.

The courts, having drawn opposite conclusions, unreasonably restricted the creditor in realization of property rights. In this connection, the Supreme Court satisfied the company's claim for procedural succession.

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WHERE THE PARTIES TO THE TRANSACTION HAVE ONE CONTROLLING PERSON, IT IS ASSUMED THAT THE FINANCING WAS PROVIDED ON ITS INSTRUCTIONS 

17.08.2020

The Supreme Court examined a dispute over the inclusion of the affiliated company's claims in the register (Decision No. 306-EC20-1077 (2) of 10 August 2020).

Content of the dispute

Royal Time Company has asked to include in the register the claims to Royal Time Group Company (hereinafter - the debtor) in the amount of 563 million rubles.

The three instances went to the applicant by including the claims in the third phase. The courts found that in 2014 and 2018 the debtor and Royal Time Company had signed two loan agreements under which the debtor was provided with cash with interest at the refinancing rate.

The parties also signed a contract for the sale of real estate, but due to the encumbrance the debtor was unable to transfer the property to Royal Time Company. At the same time, the debtor did not return 100% of the prepayment made by the company.

Courts have established affinity of the parties: the debtor was the majority participant of a society, the size of its share in authorized capital made 98,5 %.

In resolving the dispute, the courts considered that the invalidity of the transactions had not been proven. The parties' relationship was not a corporate relationship in terms of additional capitalization, as the company was transferring money to its participant, not vice versa. In other words, the company is not a controlling person in relation to the debtor.

 

Position of the Supreme Court

The Supreme Court disagreed with that. Thus, it was noted that it did not depend on the validity of the transactions whether or not the applicant's claims would be satisfied along with the independent creditors.

According to paragraph 4 of the Judicial Practice Review of the Supreme Court of January 29, 2020, in the same provision as the controlling debtor, there is an affiliated creditor, who provided financing under the influence of the controlling debtor.

Accordingly, the courts had to establish:

whether the financing was from the company, including the relationship under the real estate sale and purchase agreement;
whether the affiliated company provided financing under the influence of the controlling debtor;
what was the economic situation of the debtor at the time the financing was received.
To establish these circumstances, the dispute was sent for a new examination.

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THE COURT MAY NOT ORDER THE MANAGER TO HAND OVER ALL THE DOCUMENTATION IF PART OF IT HAS ALREADY BEEN SENT TO THE TENDER MANAGER.

24.08.2020

The Arbitration Court of the Moscow District considered a dispute in which the bankruptcy trustee demanded the transfer of documentation from the former head of the debtor (decision in case № A40-48975/2017 of August 19, 2020).

The essence of the dispute

The competing manager asked the court for assistance in obtaining the necessary documentation and belongings of the debtor from his former manager.

The court of first instance granted these requests. However, the appeal was not granted and the receiver was denied. The court stated that the defendant's sending of the requested documentation was confirmed by mail. However, the documents had been received by the manager, which he could not refute.

 

Position of the District Court

These acts cancelled the cassation, since none of them was justified.

Thus, the former manager is indeed obliged to hand over the documentation, things, valuables, seals, etc. within three days of the approval of the competition manager.

The manager has the right to demand the performance of this duty in court. In this case, to justify the request it is sufficient to give arguments about the imperfection of such actions by the former head of the debtor. The burden of refutation in this case falls on the defendant.

At the same time, the conclusion of the court of appeal on the transfer of the former head of the documentation is based on the study of postal documents (receipts, acts of acceptance and transfer). As it is established, different documents were sent to the manager for different periods without mentioning specific names.

The bid manager indicated that he had the documentation, but not in full. Thus, accounting registers, advance reports, cash registers, primary documents, electronic database, etc. were not sent.

In this regard, the Court of Appeal did not consider the manager's application on the merits.

At the same time, wrong conclusions were drawn in the first instance: the court did not take into account that part of the documentation had already been transferred and imposed on the defendant the obligation to send the full amount of documentation to the manager.

The dispute has been directed on new consideration in the first instance.

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THE PRESENCE OF A NOMINEE DOES NOT EXEMPT FROM THE LIABILITY OF PERSONS CONTROLLING THE DEBTOR

01.09.2020

The Supreme Court considered a dispute on bringing the controlling debtors to subsidiary liability (Decision No. 305-ES20-5422 (1,2) of August 24, 2020).

The essence of the dispute

The debtor and the natural person in 2011 have concluded the contract of purchase and sale of details from which the natural person was going to create the plane. Assembly should have been made by the debtor, but specific conditions of this in the contract were not defined. The physical person executed the contract partially.

In two years the natural person and the design office concluded the contract on aircraft assemblage from details got by the natural person.

In 2014 the unique participant and the head of debtor Ivanova (surnames here and further are changed) has addressed to the natural person with the requirement to pay off debts under the contract of sale, specifying that the natural person has received all details and elements for aircraft assemblage.

Design Bureau, where the majority member was Petrov, and the General Director - Sidorov, confirmed that he had received from the individual all the necessary details.

At the same time, the physical person's demand for transfer of the sum of money did not satisfy, in this connection the debtor has addressed in court. It turned out that the natural person didn't sign the certificate of acceptance-transfer of details, and they were not transferred to it. The court terminated the contract of sale and obliged the debtor to return to the buyer the money which was received from him - 19.7 million rubles.

The physical person has submitted the application for recognition of the debtor as bankrupt, business has been initiated, and soon competitive manufacture has opened.

The physical person as the competitive creditor, and also the competitive manager have addressed in court with the request to involve Ivanova, Petrov and Sidorov in subsidiary responsibility.

The court of first instance satisfied the claim - as the debtor nominally managed Ivanova, and Petrov and Sidorov exercised actual control.

However, the appeal and cassation did not agree to hold Petrov and Sidorov liable, considering that the fact of control on their part was not confirmed.

 

Position of the Supreme Court

The Supreme Court stated: the presence of a nominal director is not grounds for exemption from liability of the persons controlling the debtor, at least they did not have formal powers.

The appeal and the district court considered that in confirmation of the controlling status the documents with orders for the society should be presented, but the final beneficiaries are not interested in disclosing their position.

At the same time, the applicants made quite serious arguments that the company, Ivanova and Petrov are a related group. It was also found that the actions of Petrov and Sidorov with respect to the individual-competitive creditor were coordinated and aimed at the general realization of the illegal intention.

In this regard, the Supreme Court pointed out that there were no grounds to cancel the first instance definition.

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DISTRIBUTION OF FUNDS IN BANKRUPTCY PROCEEDINGS AFTER THE SALE OF THE PLEDGED OBJECT

23.03.2020

The Supreme Court will consider a dispute in which it decides what the creditor will receive as a result of the sale of the subject matter of the pledge (Decision No. 305-EC18-15073 of March 13, 2020).

 

The essence of the dispute

The debtor, in the course of competitive production, put up for auction and sold one lot:

 

rights of claim under the leasing agreement with the company, pledged by the bank (the subject of leasing - 160 cars). The initial price was 370 million rubles;
80 cars leased out. They were encumbered with a pledge in favor of the bank. The initial price was 153 million rubles;
another 80 cars leased out, but not burdened with a pledge. The initial price was also 153 million rubles.


The tender manager calculated that 77.3% of the proceeds were due to the pledge creditor, i.e. the bank. This figure was obtained by adding up the claim rights with the value of the pledged wagons and then dividing by the total lot value.

The company did not agree with this. Since the leasing was repurchased, the repurchasing price was already included in the calculation of the value of the claim rights. Accordingly, when calculating the share of the pledge creditor, it is not necessary to include the value of the wagons twice. As a result, it was proposed to define the share of the pledge creditor as 58.47%.

The courts did not agree with the company's arguments and took the side of the tender manager. It was noted that the appraiser separately estimated the market value of the claim rights and separately - the value of cars, dividing them into collateral and non-tax cars.

Complaint to the Supreme Court

The company made these arguments.

In order to distribute the funds correctly, it was necessary to determine what kind of property the bank had on deposit - 80 cars. Accordingly, the credit institution owned only part of the claims related to the pledged property.

Also the company once again paid attention to the fact that the leasing was a redemption, and the amount of claim rights included the amount of ownership.

The claimant believes that as a result of the acts adopted by the courts, the bank was provided with preferred conditions in comparison with other creditors.

The complaint was referred to the Judicial Board for Economic Disputes and the meeting was scheduled for April 9, 2020. 

 

Source:

https://legaltop.ru/overview/verkhovnyy-sud-reshit-skolko-deneg-dostanetsya-zalogovomu-kreditoru/.