Experts opposed the bill to include bankrupt taxes as current payments

Experts at the Kommersant conference “Bankruptcy 2023” discussed the draft law of the Ministry of Economy on the priority of paying taxes by bankrupt companies. They considered it unfair to classify income tax, including from the sale of property, as current payments.

Profit tax on the sale of property of a bankrupt legal entity is a controversial issue in bankruptcy cases, which was partially resolved by the Constitutional Court (CC) only in the summer of 2023. He admitted that a bankrupt must pay taxes, but did not support the idea of ​​paying to the budget first or last. The Constitutional Court proposed that the legislator determine the order of payment of income tax from the sale of property at auction. Until the issue is resolved by law, the requirements of the Federal Tax Service are on a par with the requirements of ordinary unsecured creditors of the debtor (third priority). The Ministry of Economy has developed a bill in which it proposed to classify the tax as current payments, which are repaid as a priority, but only after the repayment of salary debts.

Dmitry Kletochkin, head of the “Restructuring and Bankruptcy” department of the company “Rustam Kurmaev and Partners,” believes that the tax should be included “in the register requirements” or “generally somewhere outside the register.” “It’s not entirely correct to abolish (the tax.— “Ъ”). I would take it somewhere before the liquidation quota. <...> There is no understanding why the state should take a share here and why others should suffer. I believe that this should go beyond the liquidation quota,” Mr. Kletochkin said at the conference.

The head of the bankruptcy and anti-crisis business protection practice group of Pepeliaev Group, Leonid Barkov, is “deeply convinced” that the tax cannot be applied to current payments. “It is obvious. Whether to place it in the third line of the registry or somewhere behind the registry is a more complex question. But, in my opinion, there is a very simple argument why income tax cannot have priority: in our country, the very nature of the bankruptcy procedure does not imply the receipt of profit. This is not the company’s normal business activities. This is already a liquidation procedure. Therefore, what kind of profit can we talk about there? It turns out… an absurd situation – we begin bankruptcy proceedings in order to ultimately satisfy the creditor’s requirements as much as possible, for this we sell property, and as a result – income tax, which is received within the current queue, for example, by the tax authority. Instead of realizing the goal of bankruptcy – satisfying the creditor’s demands,” Mr. Barkov explained his position.

Nikita Filippov, head of the MGCA “Bureau of Lawyers “De Jure””, drew attention to how some authorities justify their position on this issue. They argue that “bankruptcy procedures serve as tools for dishonest actions, including failure to fulfill obligations” and companies thus “evade paying taxes.” Mr. Filippov noted that such cases do exist, but “in the general mass they are scanty.”

Chairman of the Bankrupt Club association Oleg Zaitsev previously told Kommersant that he is generally opposed to paying this tax, since “there can be no profit in bankruptcy.” Arbitration manager Sergei Domnin took a similar position.

Read more about the problem of paying taxes by a bankrupt in the Kommersant article. “A bankrupt person cannot escape taxes”.

Leonid Uvarchev