Heirs under the credit line – Newspaper Kommersant No. 168 (7369) dated 09/13/2022

The heirs of deceased leaders or owners of bankrupt companies began to be actively brought to subsidiary liability. The beginning of the practice that is being formed in arbitration courts was laid by the decision of the Supreme Court of the Russian Federation (SC) in December 2019 in the Amur Product case, which has now entered a new circle, only strengthening the risks for heirs. The size of the debts transferred to them varies from hundreds of thousands to tens of millions of rubles. Lawyers call the trend in practice “unnecessarily accusatory”, emphasizing a number of unresolved problems. According to experts, the same Supreme Court or the Constitutional Court (CC) should rectify the situation.

On September 3, the Arbitration Court of the Amur Region published a decision in a high-profile case against Amur Product LLC (declared bankrupt in March 2017), ruling to bring the wife and children of the deceased deputy director of the company Mikhail Shefer to subsidiary liability.

This was demanded by one of the creditors, LLC RN-Nefteprodukt, considering that the death of the controlling debtor (CDL) does not release the heirs from the performance of obligations. At first, the creditor was unlucky – the claim was rejected by the courts of three instances. However, the LLC achieved the transfer of the case to the Economic Board of the Armed Forces, which in December 2019 allowed the transfer of subsidiary liability to the heirs if the control of the deputy director over the company and the guilt in its bankruptcy, the amount of which is limited by the limits of the inheritance mass, are proved (see “Kommersant” dated December 9, 2019 of the year). To establish the circumstances, the dispute was sent to a new round of consideration.

Claims against Mikhail Shefer were due to the fact that part of the fuel and lubricants stored by Amur Product was lost. A criminal case was initiated: the deputy director was accused of having, since March 2015, “out of selfish motives, embezzled the entrusted oil products for a total of 235.7 million rubles.” The proceeds, according to investigators, went to repay loans and develop a personal business. But Mikhail Shefer died in November 2015, and the criminal case was closed “for non-rehabilitating grounds.”

In addition to references to the criminal case, the decision of the arbitration court contains the testimony of the company’s employees, including the director of LLC Stepan Rudenko, the brother of the accused’s wife, Natalia Shefer. All of them stated that it was Mikhail Shefer who dealt with finances, worked with counterparties, managed account operations, controlled accounting, issuance and storage of fuels and lubricants, and also had the right of first signature.

As a result, the Amur court considered the guilt of the deputy director in the bankruptcy of Amur Product proven. And since, along with the property, the heirs also accept the debts of the testator (except for those that are inextricably linked with the personality of the debtor and terminated by his death, for example, alimony) “regardless of the time of their identification and awareness”, the risk of debt recovery under subsidiary liability “is also assigned to the heirs” , and the debt itself “is part of the estate,” the court said in the decision.

Since Mikhail Shefer’s father and mother renounced the inheritance in favor of the businessman’s wife, claims for subsidiary liability were made only against her and two minor sons. The fact that Natalya Shefer agreed to the termination of the criminal case and did not try to achieve rehabilitation, the Amur court, in fact, charged her with guilt. The examination determined the value of the hereditary shares of Natalia Shefer at 7 million rubles. and 2.3 million rubles. for each of the children – within these amounts, they will answer to the creditors of the Amur Product, if the decision remains in force.

Heirs under threat

This precedent case began to influence practice even before the September 3 decision. Arbitration courts immediately began to actively apply the position of the Supreme Court on the imposition of debts on heirs. In less than three years, the definition has already been mentioned in judicial acts more than 85 times, BGP Litigation lawyer Anton Baturin calculated (some of the references relate to procedural issues).

Most often, the courts used the position of the Supreme Court to bring heirs to subsidiary liability. Thus, the Arbitration Court of the Republic of Tatarstan, as part of the bankruptcy of Blinoff-Peterburzhskaya LLC, in November 2021 agreed to prosecute the heiress of the former head of the company Roman Chikalev, his daughter Yana. The courts emphasized that the businessman was the only CDL and made several gratuitous transactions to the detriment of the debtor company and its creditors.

The external manager of Ovoshchevod LLC was able to achieve subsidiary liability of the children of Dmitry Kulagin, recognized by the CDL, as having created an “imaginary debt” that did not correspond to the interests of the company. In November 2021, the Arbitration Court of the Republic of Tatarstan attracted, along with other CDL, the heirs of the deceased Mr. Kulagin. The appeal and cassation upheld the decision. A similar story happened with Anna Mikhailova, the daughter and heiress of Alexander Mikhailov, the owner of the bankrupt Soyuz-10 LLC. The latter, together with the director of the company Pavel Kushilo, was asked to be held liable for 17.2 million rubles. The first instance dismissed the claim, but the Seventh Arbitration Court of Appeal held both the director and the heiress liable in February 2021. Cassation supported this position.

Finally, in the case of Alkogroup LLC, subsidiary liability for 7.27 million rubles. was involved, including the co-founder of the company Stepan Shorshorov. In October 2021, the Moscow District Arbitration Court replaced Mr. Shorshorov with his three children, emphasizing that civil law does not prohibit the transfer of these obligations by inheritance.

And the matter is not limited to subsidiary liability. Heirs may become legal successors of defendants in claims for the recovery of damages caused to the debtor company and its creditors. Such solutions are already found in practice. Losses are collected in the framework of the bankruptcy of organizations from their managers and owners. The reasoning is about the same: the courts consider it unfair to grant immunity from the bankrupt’s creditors to the property inherited from the CDL.

So, in October 2020, in the case of the recovery of 11.4 million rubles. losses from the ex-head of Vodokanal LLC (declared bankrupt) Sergey Antonov The Arbitration Court of the Rostov Region replaced the deceased defendant with his daughter Anzhelika Popushenko, who accepted the inheritance. The appeal reduced the amount of damages to the limits of the estate, the cassation agreed with this.

One of the creditors of LLC “Bon Vitto” achieved the recovery of damages from the grandson of the CDL. Aleksey Nikolaenko was the director of the bankrupt LLC, and his wife Natalya was the founder. In December 2020, the Arbitration Court of the Chelyabinsk Region for the transactions of the Nikolaenko spouses on the withdrawal of assets in favor of their son Dmitry recovered 371 thousand rubles from all three relatives. losses. However, Dmitry later died, leaving the inheritance to his son. The appeal shifted the debt to the latter, recognizing him as obligated to pay damages, along with his grandparents. Cassation confirmed this decision.

Lawyers generally support the approach of the courts to shift the debt of the CDL to his heirs. According to Anton Baturin, earlier such situations were resolved by the bankruptcy of the deceased debtor – then the property of the CDL did not reach the heirs, as it was completely spent on paying off debts, including subsidiary liability. The new mechanism, according to the lawyer, “is more like a simplified collection procedure at the expense of hereditary property than a subsidiary liability of heirs.”

Right to protection

However, there are a number of objections that raise the issue of the rights of heirs to protection. By sending the Amur Product case for a new trial, the Supreme Court tried to take into account the difficulties of the defendants. Thus, the Economic Board noted that “heirs do not always have the opportunity to explain the reasons for the managerial decisions of the testator, they, as a rule, do not have a full set of evidence that the testator could provide.” In this regard, “the courts need to be assisted in obtaining evidence,” the Supreme Court stressed.

The courts, for the most part, ignore this clause. They began to hold the heirs of the CDL to account, “practically without delving into the procedural difficulties that they had to face,” emphasizes Case by Case lawyer Yulia Mikhalchuk. So, in the decision of the first instance on the “Amur product” “there is not a word about the standards of proof, nor the assessment of evidence by the defense,” she clarifies. The arbitration manager Sergey Domnin confirms the problem, considering it “the most difficult task” for the heirs to prove the absence of grounds for subsidiary liability of the CDL.

Anton Baturin draws attention to the criminal aspect of the Amur Product case and recommends that the relatives of the deceased KDL object to the dismissal of the case on non-rehabilitating grounds, seeking recognition of the absence of corpus delicti or an acquittal. Although, the lawyer admits, it is difficult to do this after the death of the accused, since relatives are unlikely to have been participants in the events.

In the dispute over the Amur Product, Sergey Domnin clarifies, “fatal for the heirs” was not the criminal case itself, but “the totality of testimonies of the company’s employees, who unanimously accused Mr. Schaefer of embezzlement.” Yulia Mikhalchuk adds that this is “a common tactic in courts: if one of the defendants dies, the living will shift all the blame on him.”

When executing decisions on subsidiary liability of heirs, it is difficult to correlate the claims of the bankrupt company’s creditors and the heir’s personal creditors, such as bona fide pledgees, notes Anton Baturin. According to him, judicial practice only approaches the problem of the correlation of the rights of creditors, “now in the courts you can meet excesses when the creditor of a citizen who died ten years ago goes bankrupt both the deceased and his heirs.”

Lawyers do not see a simple solution to all these problems. Sergey Domnin believes that changes in the legislation will not help here and it is impossible to simply release the heirs from liability. Yulia Mikhalchuk believes that in disputes about subsidiary liability, the courts should change the standards and burden of proof. “Now the responsibility of the director is presumed to alleviate the fate of creditors who do not have access to the company’s documents. But the heirs may know even less about her affairs, in such a situation the presumption of responsibility of the testator should not work,” she says.

The courts have not yet dealt with this problem, Mikhalchuk notes, because “there has not yet been a critical mass of cases.” But, according to the lawyer, “if anyone dares to change the standards of proof and ignore the presumption of responsibility of the director and owner of the company,” then the Supreme Court and the Constitutional Court. For example, it was the Constitutional Court a little less than a year ago (see “Kommersant” dated November 17, 2021) that gave the defendants rights that are not directly provided for in the bankruptcy law, allowing the CDL to challenge the claims of creditors.

Anna Zanina, Ekaterina Volkova