Force, not major – Business – Kommersant

“Kommersant” became aware of the grounds on which the claim of the Prosecutor General’s Office for 15 billion rubles was satisfied. to the former operator of the Sakhalin-1 project, a subsidiary of the American ExxonMobil, Exxon Neftegas Limited (ENL). According to the plaintiff, ENL unreasonably refused to pay taxes after it removed itself from the management of Sakhalin-1. The defendants also claimed that they were in a force majeure situation after the imposition of sanctions against Russia in connection with a special military operation in Ukraine. Supervision proved that a political reason is not a reason to stop a project.

The Yuzhno-Sakhalinsk City Court satisfied the claim of the Deputy Prosecutor General of Russia Igor Tkachev against ENL. The representative of the supervisory authority, acting in the interests of the Russian Federation, the Sakhalin Region and “an indefinite circle of persons”, sought collection from ENL 15 billion 86 million 970 thousand 921 rubles. and 76 kopecks for losses caused by non-payment of income tax. During the proceedings, the claims were increased by almost 400 million rubles.

From the materials provided by the plaintiff, the court found that ENL was repeatedly brought to administrative responsibility by the regulatory authorities of the Russian Federation in accordance with the norms of national legislation, which “by their public law nature are identical to tax legal relations.” Such decisions were not appealed by the defendant, administrative fines were paid, which, according to the Yuzhno-Sakhalin court, testifies to the recognition by the company of “the application of national legislation and jurisdiction of the Russian Federation to legal relations arising from the implementation of the Production Sharing Agreement of 1995” (concluded between the governments of the Russian Federation , Sakhalin Oblast and ENL).

Based on this, the court decided that the dispute could not be referred to arbitration or to another country, which the defendants considered appropriate, but should be resolved in a court of general jurisdiction in accordance with the rules of the national legislation of Russia.

Having examined the evidence available in the case, the court concluded that ENL’s actions in April last year to stop work on the Sakhalin-1 project had no technically and economically justified motives. Such behavior of the defendant was not caused by insurmountable circumstances of natural or man-made origin, independent of the will of the parties to the contract, which “precludes the application of force majeure provisions,” the court says.

From the letters of ENL to the authorities of the Russian Federation and the project participants, it followed that work on Sakhalin was stopped due to the introduction of sanctions against Russia by the United States, Great Britain and the countries of the European Union in connection with the hostilities in Ukraine.

However, the court did not recognize these reasons “as an objective reason for terminating the activities of the Sakhalin-1 project, since the restrictive measures were taken by the governments of the countries without a decision of the UN Security Council in violation of the requirements of Art. 41 of its charter.

In addition, it follows from the case materials that other members of the consortium (including the Indian ONGC and the Japanese Sodeco) did not begin to comply with “illegal sanctions and, by virtue of their announcement, did not stop their participation in Sakhalin-1”, so the court concluded that ENL has no “objective grounds to blame the Russian Federation for the suspension of the project”.

At the same time, the court found that as a result of ENL’s actions, the supply of associated natural gas to the Khabarovsk Territory was stopped, “thus creating a threat of an emergency,” and “the projected income of all participants in the consortium of investors in 2022 decreased by more than two times compared to 2021″.

In the debate, the representative of the Prosecutor General’s Office pointed out that the income of ENL itself in 2021 amounted to 51 billion rubles, and in 2022 – only 25.4 billion rubles. Sodeco received 51 billion rubles in 2021, and in the next – already half of this amount. ONGC earned RUB 34 billion from Sakhalin-1 in 2021, and RUB 16.9 billion in 2022. And the income from the same Rosneft project in 2021 amounted to 34 billion rubles, in 2022 – only 16.9 billion rubles.

“ENL terminated its duties as an operator without transferring these functions to another Sakhalin-1 participant for political, rather than economic reasons, to the detriment of the interests of its shareholders and project investors,” the supervisor noted.

These “extraordinary circumstances”, the court concluded, in turn, became “the only reason for issuing” a decree by Russian President Vladimir Putin and a government decree in October last year, by which the functions of the project operator were transferred to the specially established Sakhalin-1 LLC with the right of all participants of the consortium to receive shares of this company. The relevant legal acts, the court noted, “were of a retaliatory and coercive nature against the unlawful actions of ENL.”

In connection with the non-payment of income tax in full, the Federal Tax Service for the Sakhalin Region issued a corresponding requirement to ENL back in May last year, which the company ignored. In August of the same year, 538 million 843 thousand 495 rubles were debited from the accounts of the Sakhalin branch of the company in Citibank and Rosbank. and 24 kop. in favor of the tax authorities, which did not cover the losses.

According to the calculation provided by the prosecutors, verified and recognized as justified by the court, the amount of losses caused to the Russian Federation and the Sakhalin Region by ENL’s evasion of income tax, as of January 30, 2023, amounted to 15 billion 479 million 095 thousand 200 rubles. and 78 kop. (the main part of the damage, more than 9 billion rubles, fell on the region).

Interestingly, at the same time, no objections regarding the provided calculation, as well as evidence confirming the validity of the claims, were presented by the defendant to the court.

The claim for this amount was satisfied in full. In addition, the court ordered the defendant to pay a fee in the amount of 60 thousand rubles. to the budget of Yuzhno-Sakhalinsk.

How exactly the damage will be recovered, the representatives of the plaintiff “Kommersant” did not specify, noting that this is a question more for the FSSP and it will be resolved after the decision of the Yuzhno-Sakhalinsk court comes into force. The defendants still have time to appeal.

Nikolai Sergeev