Complications after coronavirus subsidies – Business – Kommersant

Complaints from companies affected by the coronavirus pandemic, which were deprived of the financial support promised by the state, reached the Supreme Court of the Russian Federation (SC). Banks that provided soft loans to small and medium-sized businesses (SMEs) in 2020 are in some cases collecting them back due to an alleged decrease in the number of employees, which in fact was not. Until now, the practice of such disputes has been contradictory, meanwhile, the problem is widespread. Lawyers expect that the Armed Forces will support business, because the purpose of state support was to neutralize the negative effect of the pandemic for it.

As follows from the decision of the Supreme Court published on December 8, the case of Yuzhnaya Appraisal Company Expert against Promsvyazbank related to a preferential loan for salaries to employees was submitted to the economic board of the court for consideration. This was a government-approved measure of state support for SMEs from the sectors most affected during the pandemic – the loan was issued at a minimum interest rate (or no interest at all) and was completely “goodbye” to business, provided that 90% of the number of employees remained from June 1, 2020 to April 1, 2021. If at least 80% of the state was retained, then the state repaid half of the amount.

In July 2020, Expert received such a preferential loan from Promsvyazbank in the amount of 3.15 million rubles. at a rate of 2% per annum, which changed to 12% upon termination of the grace period. In December 2020, the bank transferred the borrower to the observation period and began to check information on the number of employees. In March 2021, Promsvyazbank notified the company of forgiving only 50% of the amount, indicating that the number of its employees as of June 1, 2020 was 58 people, and in March – only 51, that is, it decreased by more than 10%. Subsequently, 1.63 million rubles. the remaining debt was written off without acceptance from the LLC account.

“Expert” challenged the bank’s actions in court, stating that the conditions for the subsidy were fully met, and the bank mistakenly focused on the data on the number of employees for April 2020, while in May the company had 50 employees.

The Arbitration Court of the Krasnodar Territory in December 2021 rejected the company’s claim. The court indicated that the number of staff is determined by the bank on the basis of information posted by the Federal Tax Service in a special service. The primary source of this information is the reporting that the borrower monthly submits to the Pension Fund of Russia (PFR), and he, in turn, provides information to the tax authorities. Since, as of June 1, 2020, information for April was available in the FTS service only, the bank used this data, the decision says. Moreover, the court clarified that they cannot be updated according to the results of May, since the bank calculated the loan amount based on April data. The appeal and cassation supported these conclusions.

“Expert” complained to the Supreme Court. The complaint explains that, according to the law, information about employees is submitted to the FIU no later than the 15th, and the LLC submitted a report for May on June 8th. In addition, the Federal Tax Service confirms that the information for May was received from the FIU on June 11, and they posted it between June 17 and 24. Thus, by the time of applying for a loan on June 22, the tax resource should have already contained updated information.

Also, Expert points out, the courts ignored the fact that when calculating the lending limit, the bank used data on the number of employees for May (50 people), so the loan was issued in the amount of 3.15 million rubles. The company itself does not have access to the special tax service and is a weaker side, unlike the bank, a professional market participant, whose behavior made it possible to believe that it was the information about employees for May that was calculated to check the conditions and subsequently write off the loan. The Supreme Court considered the company’s arguments worthy of attention and referred the case to the Economic Board, the hearing is scheduled for December 21.

The story of “Expert” is by no means isolated, and the problem with the abolition of benefits on loans and the recovery of these loans from businesses is massive, lawyers say.

Last year, Kommersant wrote about the beginning of litigation between businesses and banks on “covid” subsidies, some of the disputes just concerned discrepancies with the month for which information on the number of employees was taken (see Kommersant dated July 16, 2021).

Judicial practice was contradictory, and finally, in 2022, business complaints reached the highest court. Moreover, over the past month, the “Expert” case turned out to be the second one related to “covid” loans. So, in November, the Supreme Court considered a similar dispute, where he took the side of City LLC in a dispute with VTB Bank, says Orchards partner Alexei Stankevich. Such lawsuits have become a frequent occurrence, because companies that fulfilled the conditions of subsidies in 2020 found themselves deprived of benefits in 2021-2022, says Denis Laktionov, president of the Chamber of Lawyers of the Leningrad Region. Particular activity, according to him, is observed in the Sverdlovsk region, where, as of March, more than 100 such cases were being considered.

Unreasonable write-offs of funds by banks on preferential loans today have become “a kind of trend,” Alexey Stankevich notes.

In fact, continues Denis Laktionov, there is a situation where “banks, having received outdated information from the services of the Federal Tax Service, transfer the company to general lending conditions.” In the case with Expert, explains Mr. Stankevich, Promsvyazbank “actually tried to change the mechanics of calculating the amount of repayment of a loan, finding a purely formal loophole”, thereby “violating civil law and came into conflict with the goals and objectives of the mechanism developed by the government.” According to Mr. Laktionov, such behavior “is beneficial for banks – it is easier for them to recover than to deal with.”

Meanwhile, the essence of state support was to create, first of all, favorable conditions for borrowers and “level out the negative economic consequences of the pandemic,” emphasizes Denis Laktionov. Both experts expect the SC to support the company’s position, “which appears to be balanced economically and legally.”

Ekaterina Volkova, Anna Zanina